                                                                                        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.




                                           2
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

             2
            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.


                                            3
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.



                                            4
    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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