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

Court of Appeals of Texas·Decided August 24, 2015·No. 03-15-00464-CV·Published

Opinion

ACCEPTED 03-15-00464-CV 6619351 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/24/2015 11:58:02 AM JEFFREY D. KYLE CLERK NO. 03-15-00464-CV __________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD JUDICIAL DISTRICT OF TEXAS8/24/2015 11:58:02 AM AT AUSTIN JEFFREY D. KYLE ________________________________________________Clerk

VICTORY CHEVAL HOLDINGS, LLC, GARRETT JENNINGS AND CASTLE CROWN MANAGEMENT, LLC,

Appellants

DENNIS ANTOLIK, VICTOR ANTOLIK and CHEVAL MANOR, INC.,

Appellees

APPELLEES DENNIS ANTOLIK’S AND CHEVAL MANOR, INC.’S MOTION FOR CONTEMPT AND FOR REFERRAL TO TRIAL COURT

TO THE HONORABLE THIRD COURT OF APPEALS:

Pursuant to Texas Rule of Appellate Procedure (“TRAP”) 29.4, Appellees

Dennis Antolik and Cheval Manor, Inc. (collectively, “Appellees”) file this motion

seeking to hold Appellants Garrett Jennings, Castle Crown Management, LLC, and

Plaintiff Victory Cheval Holdings, LLC (collectively, “Appellants”) in contempt

for violating the Temporary Injunction (“TI”) now on interlocutory appeal before

this Court. Despite the fact that this Court denied Appellants’ motion for stay,

Appellants still refuse to comply with the TI. Appellees request that the Court

8590-02/00531503.000 1 refer this enforcement proceeding to the trial court to hear evidence and grant

appropriate relief pursuant to TRAP 29.4(a). In this instance, the trial court should

issue an order requiring Appellants to appear and show cause why they should not

be held in contempt pursuant to Texas Rule of Civil Procedure (“TRCP”) 692.

I. BACKGROUND

1. Following hearings held on June 22 and July 14, 2015, the Honorable

Judge Karin Crump of the 250th Judicial District Court of Travis County, Texas

the issued the TI in the proceeding underlying this appeal. A certified copy of the

TI is attached hereto as Exhibit A. Appellants subsequently filed this interlocutory

appeal and moved to stay the TI. On August 6, 2015, this Court denied the motion

for stay. A certified copy of the clerk’s notice of this Court’s ruling is attached

hereto as Exhibit B.

2. Nevertheless, Appellants continue to ignore the TI and Appellees’

demands that they comply with same. See Exhibit C, which is a true and correct

copy of Appellees’ August 18, 2015 demand letter. Specifically, as set forth in the

Affidavit of Dennis Antolik attached hereto as Exhibit D, Appellants have failed

and refused to perform the following acts required under the TI:

• Signing the documents necessary for VCH to establish a new Operating Account for the Property. See Exhibit A §§ C(1) & C(5). This, of course, makes it impossible to deposit boarder and other customer payments into the Operating Account as required under the TI, which funds are intended

8590-02/00531503.000 2 to be used to pay various specified expenses. See id. §§ C(1), C(2), C(3), & C(5).

• Paying Veterinarian DVM Jonathan Cohen for bi-weekly assessments of the health and safety of the horses on the Property. See id. §§ C(3)(a) & C(5);

• Paying Cheval Manor, Inc. $2,500 per month for services and maintenance performed on the Property. See id. §§ C(3)(c) & C(5);

• Paying up to $6,000 per month for regular labor and maintenance relating to the polo field. See id. §§ C(3)(d) & C(5);

• Paying Janine Rosen up to $500 per month to supervise the horse care and boarding services provided to boarders and equestrians on the Property. See id. §§ C(3)(e), C(4), & C(5);

• Paying for bona fide operating expenses up to $500 per transaction, including but not limited to repairing fences, cleaning in and around the barn, and taking care of other maintenance issues and potential hazards noted in Ms. Rosen’s Property and Horse Inspection Report for August 2015 filed with the trial court on July 31, 2015. See id. §§ C(3)(j) & C(5);

• Paying reasonable and necessary fees up to $35,000 to repair the polo field. See id. § C(6); and

• Providing Dennis Antolik with the passwords needed to access Austin Polo Club’s Facebook page and website as required under the TI and as agreed on the record at the June 22, 2015 TI hearing. See id. § A(1).

II. ARGUMENT

A. This Court should refer this enforcement proceeding to Judge Krump to hear evidence and grant appropriate relief.

3. TRAP 29.4 provides that an interlocutory order on appeal must be

enforced in the appellate court in which the appeal is pending. However, the

8590-02/00531503.000 3 appellate court may “refer the enforcement proceeding to the trial court with

instructions to: (a) hear evidence and grant appropriate relief; or (b) make findings

and recommendations and report them to the appellate court.” See also In re

Sheshtawy, 154 S.W.3d 114, 124-25 (Tex. 2004) (observing that it is “better

practice” for the appellate court to refer enforcement proceedings to the trial court

for hearing and factfinding).

4. Here, Appellees respectfully suggest that the trial court, and in

particular Judge Krump’s court, is the best tribunal to enforce the TI. 1 Judge

Krump heard extensive evidence and oral argument at two hearings, and she

crafted the TI based on competing submissions of the parties. See Exhibit A.

Judge Krump should be the one to take evidence on whether Appellants have

disobeyed the Temporary Injunction and to decide whether they should be held in

contempt. Appellees request that this Court refer this enforcement proceeding to

Judge Krump with instructions to hear evidence and grant such relief as she deems

appropriate.

B. The court should issue a show cause order requiring Appellants to appear and demonstrate why they should not be held in contempt.

5. TRCP 692 authorizes a court to punish a party who disobeys an

1 Travis County District Court Local Rule 1.4 provides that “Motions Challenging a Prior Ruling” must be heard by the judge who made the ruling. See https://www.traviscountytx.gov/images/courts/Docs/local_rules_civildistrict.pdf. Appellees suggest that the same policies underlying this rule apply to the enforcement a prior court order.

8590-02/00531503.000 4 injunction with contempt. The court has two options under TRCP 692. First, the

court may issue a writ of attachment instructing a sheriff or constable to arrest the

disobedient party and bring him before the court. Tex. R. Civ. P. 692. Second, the

court may issue a show cause order instructing the disobedient party to appear

before the court to demonstrate why he should not be held in contempt. Id. If the

court finds at the hearing that the offending party did in fact disobey the injunction,

the court may commit that party to jail without bail until he “purges himself of

such contempt.” Id.

6. As set forth in paragraph 2 above, Appellees have failed and refused

to comply with the TI issued by the trial court over a month ago, even after this

Court refused to grant them a stay. The trial court (or this Court) should issue a

show cause order requiring Appellants to appear before the trial court and explain

why they should not be held in contempt. If Appellants still refuse to comply with

the TI, the trial court should hold Appellants in contempt. See Exhibit D.

III. PRAYER

Appellees respectfully request that this Court refer this enforcement

proceeding to the Honorable Karin Crump of the 250th Judicial District Court of

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