                                                                                                ACCEPTED
                                                                                            03-15-00464-CV
                                                                                                    6283523
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       7/29/2015 8:08:50 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                NO. 03-15-00464-CV

                                                                         FILED IN
                                                                  3rd COURT OF APPEALS
                           IN THE COURT OF APPEALS                    AUSTIN, TEXAS
                                                                  7/29/2015 8:08:50 PM
                                      FOR THE                       JEFFREY D. KYLE
                                                                          Clerk

                     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.,

                                      Appellees


       APPELLANTS’ MOTION TO STAY TEMPORARY INJUNCTION


TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 29.3, Texas Rules of Appellate Procedure, Appellants,

Victory Cheval Holdings, LLC (“VCH”), Garrett Jennings (“Jennings”) and Castle

Crown Management, LLC (“Castle Crown”), move the Court to stay certain

provisions of the Temporary Injunction that is the subject of this interlocutory appeal.

In support of this motion, Appellants would show the Court as follows:
A.       Introduction. 1

         1.    VCH owns an 88-acre tract of land in eastern Travis County near the

northwest corner of US 290 and SH 130 (the “Property”). VCH bought the property

from Cheval Manor, Inc. in late December 2013. VCH is owned 51% by Jennings

and 49% by Victor Antolik. Jennings Aff. at ¶ 3.             Jennings is the sole managing

member of VCH; Victor Antolik has no management authority with VCH. Jennings

Aff. at ¶ 2.

         2.    Castle Crown is a management company wholly owned by Jennings.

Jennings and Castle Crown have been managing the horse boarding and polo

activities at the Property since January 2014. The Temporary Injunction that is the

subject of this interlocutory appeal dramatically alters the status quo that has been in

place for the past year and a half and does so in a manner that is both unrealistic and

unworkable.

         3.    The Order is subject to reversal for many reasons, chief of which is its

failure to comply with the requirement of Rule 683, Texas Rules of Civil Procedure,


     1
       A certified copy of the Temporary Injunction is attached as Exhibit A. Certified copies of
the “live pleadings” on file at the time of the hearing, consisting of Victor Antolik’s pleading
containing his Application for a Temporary Injunction, and Appellants' Response thereto, are
attached as Exhibits B and C, respectively.

       The factual allegations of this Application are supported by the supporting Affidavits
attached hereto and referenced herein, and by the factual allegations of Appellants’ Response to
Victor Antolik’s Application for a Temporary Injunction (Exhibit C), which are verified by the
attached Affidavit of Garrett Jennings.




                                               3
that the Order set forth in a non-conclusory fashion the purported probable, imminent

and irreparable harm that Appellees would allegedly suffer absent an injunction. The

Order merely states that it “is necessary and proper as a temporary injunction in order

to prevent harm, injury or loss to the parties, including injury to persons and property,

during the pendency of this matter.” Temporary Injunction, para. C8. This is clearly

inadequate and, standing alone, cause for reversal. See El Tacasco, Inc. v. Jireh Star,

Inc., 356 S.W.3d 740, 747-748 (Tex.App.-Dallas 2011, no pet.).

       4.       Pending this Court’s review of the appeal on the merits, however,

Appellants would show that granting a stay of the enforcement of certain provisions

of the Order is necessary in order to protect both Appellants’ rights and the Court’s

jurisdiction.

B.     The Court should stay paragraph C6 of the Order, requiring Jennings to
       pay the reasonable and necessary costs, not to exceed $35,000, for repair
       of the damage to the polo field on the property.

       1.       As an initial matter, Appellee never requested this relief in its Motion

for Temporary Injunction. See Ex. B. Without any supporting pleading or factual

basis, and in contravention of the VCH organizational documents, the Court ordered

Jennings to make this payment. Furthermore, the evidence at the hearing was

undisputed that the damage to the polo field was caused solely by Appellee, Dennis

Antolik. Dennis Antolik allowed his horses (approximately 13) to roam free over the

polo field after the torrential rains in the Austin area in late May 2015 that saturated



                                            4
and soaked the field, essentially turning it into a bog with the obvious result being

that the field was rutted and filled with holes. See, e.g., Greening Aff. at ¶ 2. None

of Appellants, including Jennings, caused any damage to the field.

      2.     If Jennings complies with the Order and pays up to $35,000 for repair of

the damage caused to the polo field (which was caused by Dennis Antolik) it would

be the same as a party paying a monetary judgment on appeal. Ordering such a

payment would have the effect of causing the Court to lose jurisdiction because the

appeal of that provision of the Order would become moot. Highland Church of

Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982) (voluntary payment of a

judgment moots the controversy between the parties, and appellate courts will not

decide moot cases involving abstractions); see also, Valley v. Patterson, 614

S.W.2d 867, 869 (Tex.Civ.App.-Corpus Christi 1981, no writ) (the appellate

court had jurisdiction to grant an injunction to stay the proposed trustee’s sale to

preserve subject matter of the appeal and protect the appellate court's

jurisdiction); Sonny Arnold, Inc. v. Sentry Sav. Ass’n, 602 S.W.2d 90, 93

(Tex.Civ.App.-Amarillo 1980, orig. proceeding) (a temporary injunction to

enjoin the respondents from selling property until the appeal was resolved was

proper).




                                          5
       3.     Therefore, the Court should stay paragraph C6 of the Order pending the

appeal in order to preserve its jurisdiction.


C.     The Court should stay paragraphs C1, 2, 3 and 6 of the Order and allow
       funds to be collected and used as they have been in the past, for use for
       the repair and maintenance of the polo field.

       1.     As shown by the Affidavit of John Greening attached as Exhibit D, Mr.

Greening and Mr. Joe Trimble, have for the past three years collected “green fees”

from persons who use the polo field and they have used those funds to provide for the

maintenance of the field. Greening Aff. at ¶ 2. Mr. Greening has already mowed the

polo field, obtained estimates for its repair, and begun the process of repair. Id.

Therefore, it is not necessary for Mr. Jennings to additionally pay any amount of

money to repair the damage to the polo field caused by Dennis Antolik. The Court

should, however, stay enforcement of paragraphs C1, 2, and 3 of the Order with

respect to the funds collected by Mr. Greening and Mr. Trimble to allow those funds

to be used to pay for repair and maintenance of the polo field.

       2.     As also shown by Mr. Greening’s Affidavit, the polo season begins

September 1, 2015, and there is a substantial polo event (3000+ expected attendance)

scheduled for October 2015. Greening Aff. at ¶ 2, 4. The field will need to be

repaired before that date in order for that event to proceed. If it is not and the event is

cancelled, it will cause irreparable injury to VCH, including damage to its image in




                                                6
the polo community as a facility for polo events. In order to repair the field in time,

the persons paying green fees will need assurance that the funds they are paying will

be used for their intended purpose, namely, to repair and maintain the polo field and

not to be deposited into a VCH account whose control and use, as discussed below,

is, at best, unclear. The only way to avoid the harm associated by the loss of the polo

operations to VCH is to stay enforcement of paragraphs C1, 2 and 3 of the Order

with respect to the funds collected by Mr. Greening and Mr. Trimble and allow those

funds to be used to directly pay for the repair and maintenance of the polo field.

D.       The Court should stay paragraphs C2 and C3 of the Order because they
         are ambiguous, unrealistic, unworkable, and their enforcement will result
         in harm to Appellants.

         1.    For over a year and a half the boarding and polo operations have been

managed by Jennings through Castle Crown.2 The current revenue from boarding

operations at the Property is minimal. Attached as Exhibit E is the Affidavit of Paula

Eckberg, Accounting Manager for Castle Crown, to which is attached a current “rent

roll” from the boarding operations. Eckberg Aff. at ¶ 2. As shown therein, net

income for the Property is currently $3,350 per month. Id. Under Sections C2 and

     2
        As discussed in Appellants’ Response to Victor Antolik’s Application for a Temporary
Injunction (Exhibit C), the Antoliks have occupied and refused to vacate the residence on the
Property since the December 2014 closing. Their right to possession of the residence is the
subject of a separate action pending in the Travis County Court at Law as a de novo appeal of a
judgment of the Justice Court in an eviction proceeding. VCH and Castle Crown are the
Plaintiffs in that proceeding and they have filed a Motion for Summary Judgment on the issue of
the Antoliks’ right to possession of the residence. The motion is currently set for hearing on
August 19, 2015.




                                              7
C3 of the Order, this income is now supposed to be deposited into a newly created

“Operating Account” of VCH (on which Jennings and Victor Antolik are the only

“authorized persons”) and the funds are to be used to pay a laundry list of expenses

set forth at Section C3(a) through (j) of the Order.

      2.     Despite the fact that Victor Antolik may be an “authorized person” on

the Operating Account (whatever that may mean), Appellants interpret the first

sentence of C5 to make 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). Appellants assume Victor

Antolik will dispute this interpretation, which will lead to an inability to even open

the Operating Account, much less use it for the deposit of revenue from the Property

and payment of expenses associated with the Property.

      3.     Furthermore, although Appellants do not interpret C3 as requiring that

the persons or sums listed in subparagraphs (a) through (j) be paid (but rather that the

money in the “Operating Account” may only be used for the type of expenses listed

in C3, subparagraphs (a) through (j), and only up to any maximum amounts stated),

the Order is nevertheless silent as to how the income is to be allocated when (as will

obviously be the case) there is not enough income to pay all of the expenses listed in

(a) through (j). The Order also does not address the ramifications of the fact that



                                            8
persons listed in (a) through (j) may claim to have fulfilled some role as outlined in

C3, yet are unpaid because there is simply not enough money in the Operating

Account, and then expect payment under some type of implied contract theory,

presumably from VCH. 3

       4.      Texas law is clear that “…an injunction must be as definite, clear and

precise as possible and when practicable it should inform the defendant of the acts

he is restrained from doing, without calling on him for inferences or conclusions

about which persons might well differ and without leaving anything for further

hearing.” Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948).

The provisions of C2 and 3 of the Temporary Injunction in this case are anything

but definite, clear and precise and is, therefore, they should be stayed. In addition,

they should be stayed to prevent harm to Appellants and the Property.

       5.      There are currently only four individuals who pay to board horses at the

Property: April Lucas, George Humphrey, John Greening and Suzanne Trimble (wife

of Joe Trimble). 4 As explained in the Affidavit of Mr. Greening, the paid boarders

are not likely to make payments unless they are assured that their money is going to

3
  For example, Dennis Antolik may contend that his company, Cheval Manor, Inc. purportedly
provided care and feeding of the paid boarder horses during the day and is thus entitled to
compensation of $2,500 per month under C3(c).
4
  The “paid” boarders are listed on the rent roll attached to Ms. Eckberg’s Affidavit. See Ex. E. In
addition to their horses, the Antoliks maintain 13 horses on the Property (Greening Aff. at ¶ 2) but,
like the situation with the house in which they are living, they don’t pay anything toward the cost
of boarding those horses.



                                                  9
be used to pay for food for their horses and to take care of their horses. Greening

Aff. at ¶ 6. Specifically, boarders have stated that they will withdraw their horses

from the Property if Dennis Antolik’s company, Cheval Manor Inc. is given control

over the feeding and care of the horses as indicated in paragraph C3(c) of the Order.

Id. at ¶ 5.5 Under the terms of the Temporary Injunction, if there is not a clear

delineation of who gets to decide what to use the funds for, then there will be a

problem in securing payments from the boarders and continuing to operate the

facility. To the extent the Order, in fact, makes Victor Antolik and Garrett Jennings

jointly responsible for determining what services and items the money is paid for,

then, given the ongoing litigation and conflict between these parties, it is not likely

that they will be able to agree on the use of funds and the entire boarding operation

will grind to a halt. The Order is silent on what occurs when such disagreements

inevitably arise.

       6.     Further, Victor Antolik agreed that Garrett Jennings would have

management authority over VCH. Jennings Aff. at ¶ 2. The effect of the Order (if

interpreted to give Victor Antolik and Garrett Jennings joint control of the account)

5
  A stay is further warranted given Dennis Antolik’s upcoming sentencing for felony tax fraud.
Dennis Antolik has plead guilty to tax fraud (Ex. G) and will be sentenced on August 7, 2015
(Ex. H). The Court refused to consider Dennis Antolik’s plea and upcoming sentencing during
the Temporary Injunction hearing, which will be an additional point of error for the Court of
Appeals to consider. First, it is possible that Dennis Antolik will be sentenced to prison on
August 7th and be unable to perform the duties afforded him in paragraph C3(c) of the Order.
Regardless, any association required by the Order between Dennis Antolik and VCH will chase
paying boarders away and irreparably harm VCH’s business.



                                             10
would be to radically change the status quo, put Victor Antolik in a position of

management authority at VCH (which he does not have) and result in the loss of

boarders and the polo operations.

      7.     In summary, the boarding and polo operation is conducted on limited

resources. Jennings Aff. at ¶ 5. In the past, the negative cash flow has been handled

by Jennings contributing additional money out of his own pocket to meet operating

expenses. Jennings Aff. at ¶ 5. This will not occur in the future if the terms of the

Temporary Injunction are imposed. Going forward under the terms of paragraphs

C1, 2, 3, 4 and 5 of the Temporary Injunction will result in loss of boarders, loss of

the polo operations, the loss of the limited income currently being generated on the

Property and potentially would expose VCH to liability for claims for expenses under

C3 of the Order. Jennings Aff. at ¶ 7. Therefore, it should be stayed pending appeal.

                       CERTIFICATE OF CONFERENCE

      Counsel for appellants attempted to confer via email with counsel for

Appellees regarding the contents of this Motion. To this date, counsel for Appellees

have not responded or attempted to resolve the matters in this Motion.

                                       PRAYER

      WHEREFORE, Appellants pray that this Court stay certain provisions of the

Temporary Injunction that are the subject of this interlocutory appeal and for all such

other and further relief to which they may be justly entitled at law or in equity.



                                           11
     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: 512/236-8007
     Fax: 512/479-6417
     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
     State Bar No. 18664350
     Brian L. King
     State Bar No. 24055776
     REED & SCARDINO LLP
     301 Congress Avenue, Suite 1250



12
                                             Austin, Texas 78701
                                             Tel: 512/474-2449
                                             Fax: 512/474-2622
                                             psmith@reedscardino.com
                                             bking@reedscardino.com
                                             ATTORNEY FOR APPELLANT,
                                             VICTORY CHEVAL HOLDINGS,
                                             LLC


                         CERTIFICATE OF SERVICE

      By my signature above I certify that a true and correct copy of the foregoing
Appellants’ Motion to Stay Temporary Injunction has been served upon the below-
named counsel on this the 29th day of July, 2015 as follows:

      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

      Mark Taylor                   Via Email: MarkT@hts-law.com
      Cleveland Burke               Via Email: cburke@taubesummers.com
      Taube Summers Harrison Taylor Meinzer Brown LLP
      100 Congress Avenue, Suite 1800
      Austin, Texas 78701




                                        13
Exhibit A
Exhibit A
Exhibit A
Exhibit A
Exhibit A
Exhibit A
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit B
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit C
Exhibit D
Exhibit D
Exhibit D
Exhibit D
Exhibit D
Exhibit E
Exhibit E
                                 AFFIDAVIT OF GARRETT JENNINGS


THE STATE OF CALIFORNIA                 §
                                        §
COUNTY OF VENTURA                       §


        BEFORE ME, the undersigned authority, on this day personally appeared Garrett Jennings,

who, being by me first duly sworn, deposed and stated:

        1.      My name is Garrett Jennings. I am over 21 years old and I am competent in all

respects to make this affidavit. I have personal knowledge of the facts and matters stated herein,

and they are true and correct.

        2.      I am the Managing Member of Victory Cheval Holdings, LLC (“VCH”) and the

owner of Castle Crown Management, LLC. Attached as Exhibit “A” is the Unanimous Written

Consent naming me as Managing Member.

        3.      VCH is owned 51% by me as Managing Member and 49% by Victor Antolik as

Member. A copy of the Company Agreement of VCH is attached as Exhibit "B".

        4.      I have read the factual allegations contained in (a) the “Factual and Procedural

Background” section of the Response to Request for Appointment of Receiver filed herein as

Exhibit C to Appellants’ Motion to Stay Temporary Injunction and (b) paragraphs A through D of

Appellants’ Motion to Stay Temporary Injunction, and state on oath that they are true and correct.

        5.      The property at issue in this case has been operating at a deficit since January 2014.

The income from the horse boarders is not sufficient to pay the expenses associated with the

boarding operations. I have had to contribute funds on a monthly basis in order for the operation to

stay in business.

        6.      There is not enough revenue from the boarding operations to pay the expenses

described in paragraph C.3. of the Temporary Injunction.

        7.      If the polo fields are not repaired before the start of the polo season, the business will
be unable to open for the polo players, the event described in the Affidavit of John Greening will




                                               Exhibit F
not be able to take place, and as a result, the business will be substantially harmed.

        8.      There is no immediate or irreparable harm to the business. The harm to the business

was due to Mr. Antolik’s horses damaging the polo fields and causing danger to people. Mr. Antolik

has agreed to keep his horses confined in the pasture, therefore, any immediate or irreparable harm

has been remedied.



                        REMAINDER OF PAGE INTENTIONALLY LEFT BLANK




                                              Exhibit F
EXHIBIT G
_.,..._..,   -.- ---------------------------------- - ---
                   Case 1:14-cr-00282 ~ L Y Document 22 (Court only)             Filed 04/02/15 Page 1 of 7



                                             UNITED STATES DISTRICT COURT
                                              WESTER.tl..J DISTRICT OF TEXAS
                                                    AUSTIN DIVISION

              UNITED STATES OF AMERICA,                          )
                                                                 )
                                              Plaintiff          )
                                                                 )
              v.                                                 )           No. 1:14-CR-00282-LY
                                                                 )
              DENNIS ANTOLIK,                                    )
                                                                 )
                                              Defendant          )


                                                     PLEA AGREEMENT

                      The Defendant, both personally and through his undersigned counsel, and the United
              States Attorney for the Western District of Texas ("the government") enter into the following plea
              bargain agreement pursuant to Rule 11(c)(l) ofthe Federal Rules of Criminal Procedure:

                                           Defendant's Agreement to Plead Guilty

                      The Defendant agrees to plead guilty to Count Three of the Indictment, which charges the
              Defendant with Filing a False Individual Income Tax Return ("Form 1040"), for tax year 2005 in
              violation of26 U.S.C. § 7206 (1).

                                          Punishment and Collateral Consequences

                     The Defendant understands that the offense to which he is pleading guilty carries the
              following penalties:

                      1.      Impri sonment for a term no longer than 3 years;

                      2.     A term oL supervised release no longer than 1 year;

                      3.     A fine no greater than $100,000;

                      4.     An amount of restitution to be determined by the Court, which the Defendant
                      agrees may include restitution arising from all relevant conduct, not limited to that arising
                      from the offense of conviction alone; and

                      5.     A mandatory monetary assessment in the amount of $100.




             Plea Agreement - Page 1
   Case 1:14-cr-00282-LY Document 22 (Court only)                  Filed 04/02/15 Page 2 of 7




         The Defendant understands that, in addition to the punishments described above, his guilty
 plea and conviction may have other or collateral consequences. These consequences may
 adversely affect such things as the Defendant's right to possess firearms and right to vote, and the
 immigration status of a defendant who is not a U.S. Citizen. The Defendant has discussed with
 the Defendant's counsel the punishments and other consequences of pleading guilty, understands
 that not all of the consequences can be predicted or foreseen, and still wants to plead guilty.

        The Defendant understands that the Court decides the punishment that will be imposed.
The Court shall determine the sentence to be imposed in accordance with 18 U.S.C. § 3553(a),
after considering the application of the Sentencing Guidelines. The Guidelines are advisory and
not binding, although the Court is required to consider them. Any prediction or estimate of the
probable sentencing range or ultimate sentence that may be imposed, whether from the
government, the Defendant's attorney, or the Probation Office, is not a promise, is not
binding, and is not an inducement for the Defendant's guilty plea or waivers. The
Defendant will not be permitted to withdraw his guilty plea because the sentence imposed
differs from the sentence he expected or hoped for.

       The Court may accept or reject this agreement, and may defer this decision until it has
reviewed the presentence report. If the Court accepts the agreement, but declines to follow the
government's sentencing recoinmendations, the Defendant has no right to withdraw his guilty
plea.
                                       Waiver of Rights

        The Defendant understands that he has the following rights:

        1.      The right to plead not guilty, or having already so pleaded, to persist in that plea;

        2.      The right to a trial by jury;

        3.     The rights at trial to confront and cross-examine adverse witnesses; to be protected
        from compelled self-incrimination (the right to remain silent); to testify and present
        evidence; and to compel the attendance of witnesses;

        4.     The right to be represented by counsel and if necessary to have the court appoint
        counsel at public expense:Bat trial and at every other stage of the proceeding.

       The Defendant understands that, by pleading guilty, he waives and gives up: the right to
plead not guilty, the right to a jury trial, and the rights to confront and cross-examine adverse
witnesses, to remain silent, to testify and present witnesses, and to compel the attendance of
witnesses at trial.

       In addition to giving up the rights described above, the Defendant agrees to give up and
waive the following:




Plea Agreement- Page 2
   Case 1:14-cr-00282-LY Document 22 (Court only)                 Filed 04/02/15 Page 3 of 7




        Pretrial Motions: The Defendant understands that he could raise a number of issues and
 challenges by pretrial motion, including motions to suppress evidence and to dismiss the charges.
 By entering into this agreement and pleading guilty, the Defendant agrees to give up any and all
 claims he has made or might have made by pretrial motion, and agrees to the dismissal of any
 motions that currently are pending.

         Discovery: The Defendant agrees to give up and waive any claims he may have now or
 may acquire later to any information possessed by the prosecution team that might be subject to
 disclosure under discovery rules, including the Federal Rules of Criminal Procedure, the Jencks
 Act, local court rules, and Court Orders, including information that might be considered
 exculpatory or impeaching under Brady v. Maryland and Giglio v. United States.

       Appeal: The Defendant agrees to waive and give up his right to appeal his conviction or
sentence, except in a case in which the sentence imposed by the Court is greater than the maximum
sentence authorized by statute.

         Collateral Attack: The Defendant agrees to waive and give up his right to challenge his
conviction or sentence in a post-conviction collateral challenge, including but not limited to
proceedings pursuant to 28 U.S.C. §§ 2241 and 225 5; except that the Defendant does not waive his
right to raise a challenge based on ineffective assistance of counsel or prosecutorial misconduct.
The Defendant agrees that, if he asserts a claim of ineffective assistance of counsel, by doing so he
will waive any claim of attorney-client privilege related to the assistance the Defendant claims to
be ineffective.                                 ·

        Attorney Fees: The Defendant stipulates and agrees that he is not entitled to and shall not
seek from the United States any attorney fees he incurred in connection with this prosecution.

                              Defendant's Agreement to Cooperate

       Defendant agrees to make a good faith effort to pay any fine, forfeiture, or restitution
ordered by the Court.

       Before or after sentencing, the Defendant agrees to provide, upon request by the Court, the
government, or the U.S. Probation Office, in whatever form they may request it, accurate and
complete financial information, and to submit sworn statements and give depositions under oath
concerning all assets and his ability to pay.

        The Defendant also agrees to surrender and release any assets, money, or other property,
whether or not derived from the commission of crin1es, as well as any information about the assets,
in order to satisfy any fine, forfeiture or restitution order entered by the Court. This includes
signing any waivers, consents, or releases required by third parties.

        The Defendant agrees to identify any transfer of assets made for the purpose of evading or
defeating financial obligations, and to refrain from making any such transfers.


Plea Agreement - Page 3
   Case 1:14-cr-00282-LY Document 22 (Court only)                 Filed 04/02/15 Page 4 of 7



         If the Defendant agrees to restitution, or if the Court orders restitution, the Defendant
 agrees to the immediate sale of any properties he owns and agrees that the proceeds of those sales
 shall be applied to any order of restitution. The Defendant agrees to take any reasonable actions
 requested by the government to facilitate payment of restitution.

        The Defendant agrees to cooperate with the government to identify, surrender, and forfeit
 any assets the Defendant obtained directly or indirectly from or used to facilitate illegal conduct.

        The Defendant agrees to refrain from committing any additional crimes, and to comply
 with any conditions of release that the Court may impose.

        This Plea Agreement does not require the Defendant to cooperate with law enforcement
authorities in the investigation or prosecution of other criminal offenses. If the Defendant does
cooperate by providing complete and truthful information about other criminal offenses, (a) the
government will, at sentencing, inform the Court about the Defendant's cooperation; (b) whether
to move at sentencing for a downward departure from the advisory Guideline range of
imprisonment, pursuant to USSG § 5Kl.l, based on the Defendant's cooperation, and the extent of
any departure to be requested, will be within the government's sole and exclusive discretion; and
(c) whether and to what extent to grant any such motion for downward departure will be within the
sole and exclusive discretion of the Court.

                                     Government's Agreement

       In exchange for the Defendant's agreement to plead guilty, waive the rights listed above,
and cooperate as stated above, the government agrees to the following:

        Forbear Filing Charges: The government shall not pursue additional charges against the
Defendant that arise from the facts set out in the Factual Basis for Guilty Plea ("the Factual
Basis"), which the government has filed as part of the record in this case, or any substantially
similar facts about which the government knew or reasonably could have known prior to entering
into this Plea Agreement, or which the Defendant discl08es during his truthful debriefing or
cooperation.

       Sentencing: At sentencing, the government will recommend that the Court reduce the
Defendant's offense level by three levels for acceptance of responsibility, pursuant to USSG §
2Tl.l.

         The above provisions notwithstanding, both the government and the Defendant reserve the
rights to: (1) inform the U.S. Probation Office and the Court of all information relevant to
determining sentence; (2) dispute facts relevant to sentencing; (3) seek resolution of disputed facts
or factors in conference with opposing counsel and the U.S. Probation Office; (4) allocute at
sentencing (consistent with promises by the government concerning recommended findings and
punishment); and (5) request the Court to depart from the applicable supervisory guideline range
based upon aggravating or mitigating factors.


Plea Agreement - Page 4
   Case 1:14-cr-00282-L Y Document 22 (Court only)                  Filed 04/02/15 Page 5 of 7




                                         Breach of Agreement

        Ifthe Defendant violates or breaches any of the tenns of this Plea Agreement, including his
agreement to cooperate, the government will be released from its obligations under this agreement
and in its sole discretion may do any or all ofthe following:

        I.      Move to set aside the Defendant's guilty plea and proceed on charges previously
        filed and any additional charges;

        2.     Use against the Defendant, at sentencing or in any prosecution, any statements or
        infonnation provided by Defendant during the course ofhis cooperation;

        3.      Seek additional charges based on false statements, perjury, obstruction of justice,
        or any other criminal acts committed by Defendant before or during his cooperation,
        including offenses the Defendant disclosed during his cooperation;

        4.      Seek to revoke or modify conditions of release; and

        5.      Decline to file a motion for a reduced sentence.

        The Defendant's breach of this agreement will not entitle him to withdraw his guilty plea
once he has entered it. .If the Defendant withdraws from this agreement, however, the
government will be able to use the Factual Basis against the Defendant. Specifically, the
Government will be allowed to use the Factual Basis as evidence in the government's case in chief
at the Defendant's trial, among other uses. The Defendant agrees to, acknowledges, and adopts
the facts set out in the Factual Basis as true and accurate, and the Defendant hereby stipulates and
agrees that the Factual Basis is admissible as evidence to prove the facts stated therein.

                                  Factual Basis for the Guilty Plea

        If this case proceeded to a trial on the charge set out in Count Three of the Indictment, the
government's evidence would prove the facts set out in the Factual Basis. The Defendant agrees
and stipulates that those facts are true; that the Factual Basis is admissible as evidence in this case;
and that the Court should consider the Factual Basis in detennining whether to accept the
Defendant's plea of guilty, and in detennining the Defendant's sentence.


        The parties understand that the Factual Basis does not bind the Court. The Court may find
facts and reach conclusions that contradict the Factual Basis or do not appear in the Factual Basis.




Plea Agreement- Page 5
   Case 1:14-cr-00282-LY Document 22 (Court only)                Filed 04/02/15 Page 6 of 7



                                           Voluntariness

         In entering into this Plea Agreement, agreeing to plead guilty, and waiving the rights set
 forth above, the Defendant affirms the following:

        1.      The Defendant has discussed with his attorney the charges, the possible
        punishments upon conviction, the evidence and any defenses to the charges, and the
        benefits and risks of going to trial.

        2.      The Defendant has had sufficient time to discuss the case with his attorney, and is
        satisfied with the advice given by counsel.

        3.      The Defendant is not under the influence of alcohol, drugs or medicines and
        understands the gravamen of the proceedings and the importance ofthe decision to plead
        guilty and waive rights.

        4.     The Defendant enters this agreement and decision to plead guilty voluntarily, and
        not on account of force, threats, promises or inducements, apart from the promises and
        inducements set forth in this agreement.

        5.      The Defendant agrees to plead guilty because he is guilty of the offense charged.

                                        Entire Agreement

       This Plea Agreement constitutes the entire agreement between the Defendant and the
United States Attorney's Office and is binding only upon those parties. No other promises,
inducements or agreements have been made or entered into between the parties.

        RICHARD L. DURBIN, JR.
    ~ ~ Ies,Attomey

By:~ \ ~\~,
        ROBER~\'
       TRIAL ATIORNEY               .
       Massachusetts State Bar No. 267330
       717 North Harwood, Suite 400
       Dallas, TX 75201
       Office (214) 880-9781
       Email: robert.a.kemins@usdoj.gov




Plea Agreement- Page 6
   Case 1:14-cr-00282-LY Document 22 (Court only)                Filed 04/02/15 Page 7 of 7




         Defendant's Signature: I, the Defendant, have carefully read and reviewed the
 foregoing plea agreement in its entirety. After giving careful and mature consideration to the
 making of this plea agreement, thoroughly discussing the plea agreement with my attorney, fully
 understanding my rights with respect to the pending criminal charge(s), and in reliance upon my
 own judgment and the advice of my attorney, I freely and voluntarily agree to the specific terms
 and conditions of the plea agreement. I admit that all of the facts contained in the Factual Basis
 are true and correct, and that I am guilty of the offense to which I am pleading guilty.
 Moreover, I am satisfied with my attorney's representation in this matter, with the advice my
 attorney has provi d to me, and that my attorney has rendered effective assistance.




                             --                                      D;tte



        Defense Counsel's Signature: I am counsel for the Defendant in this case. I have
fully explained to the Defendant all of his rights with respect to the pending criminal charge(s).
I have carefully reviewed this plea agreement in its entirety with the Defendant and provided the
Defendant with my best professional advice. In my opinion, the Defendant's decision to enter
into this plea agreement is made freely, voluntarily, and with full knowledge of its obligations
and consequences.




                                                                    Date
Attorney for Defendant




Plea Agreement - Page 7
EXHIBIT H
           Case 1:14-cr-00282-LY Document 30 Filed 04/02/15 Page 1 of 1




                       UNITED STATES DISTRICT COURT
                        WESTERN DISTRICT OF TEXAS
                             AUSTIN DIVISION
UNITED STATES OF AMERICA                          §
                                                  §     CRIMINAL NO :
vs.                                               §     AU :1 4-CR-00282(1 )-L Y
                                                  §
(1 ) DENNIS ANTOLIK                               §

                          ORDER SETTING-SENTENCING
         IT IS HEREBY ORDERED that the above entitled and numbered case is set fo r

SENTENCING in Courtroom 7, on the Seventh Floor, United States Courthouse, 50 1 West

Fifth Street, Austin, TX, on Friday, August 07, 2015 at 09:00AM.

      IT IS FURTHER ORDERED that the Clerk of Court shall send a copy ofthis order to

counsel for defendant, the United States Attorney, United States Pretrial Services and the United

States Probation Office. Counsel for the defendant shall notify the defendant of this setting and,

if the defendant is on bond, advise the defendant to be present at this proceeding.

      IT IS FINALLY ORDERED that in the event the services of a court interpreter are

required, counsel for the defendant shall notify the U.S. District Clerk's Office within five days

of the date of the hearing.

        lT IS SO ORDERED this 2nd day of Aprii, 2015.




                                                                   S DISTRICT JUDGE
                                                                    ).. "rue eepy ef the afi~i"'''· I certifY·
                                                                   , ' Clerllr t District court

                                                                       By
                                                                            . DeJ)    ~~~
                                                                                       Clerk
