DocketNumber： 03-15-00464-CV
Filed Date： 9/3/2015
Status： Precedential
Modified Date： 9/30/2016
ACCEPTED 03-15-00464-CV 6791249 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/3/2015 4:21:56 PM JEFFREY D. KYLE CLERK NO. 03-15-00464-CV IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS FOR THE 9/3/2015 4:21:56 PM JEFFREY D. KYLE THIRD SUPREME JUDICIAL DISTRICT Clerk 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 SUPPLEMENT TO 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, submit the following Supplement to their Response to Appellees Dennis Antolik's and Cheval Manor, Inc.'s Motion for Contempt and Referral to Trial Court (the "Motion") as follows: 1. Attached hereto is the Affidavit of Garrett Jennings in support of the factual allegations contained in the Response. 2. In addition to the reasons for denying the Motion set forth in the Response, Appellants would also urge the Court to deny the Response for the reason that the Temporary Injunction is void for failure to meet the mandatory specificity requirements of Rule 683, Texas Rules of Civil Procedure. This is an issue that will be addressed at length in Appellants' Brief on the merits of the appeal, but a summary of the argument is as follows: A. Texas Rule of Civil Procedure 683 In pertinent part, Texas Rule of Civil Procedure 683 provides: [e]very order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained....1 A trial court’s order stating its reasons for a temporary injunction must be specific and legally sufficient on its face and not merely conclusory.2 To comply with Rule 683, a trial court must set out in the order the reasons the court deems it proper to issue the injunction, including the reasons why the applicant will suffer injury if the injunctive relief is not ordered.3 "The requirements of Rule 683 are mandatory and must be strictly followed."4 If a temporary injunction fails to meet the requirements of Rule 683, it is void.5 B. The Trial Court's July 16, 2015 Temporary Injunction The trial court's temporary injunction recites that it 1 Tex.R.Civ.P. 683. 2 Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Grp. Holdings, Inc.,374 S.W.3d 488
, 495 (Tex.App.-Dallas 2012, pet. denied). 3 El Tacaso, Inc. v. Jireh Star, Inc.,356 S.W.3d 740
, 744 (Tex.App.-Dallas 2011, no pet.). 4 In re Krueger, No. 03-12-00838-CV,2013 WL 2157765
, *5 (Tex.App.-Austin May 16, 2013, orig. proceeding) (mem. op.), quoting, Interfirst Bank San Felipe, N.A. v. Paz Constr. Co.,715 S.W.2d 640
, 641 (Tex. 1986) (per curiam). 5 Reliant Hosp. Partners,LLC, 374 S.W.3d at 495
, citing, El Tacaso,Inc., 356 S.W.3d at 744
. 2 ...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.6 C. The Trial Court's Injunction is Void. In the present case, the trial court's injunction is conclusory, and does not specify the reasons why the Antoliks will suffer irreparable harm for which there is no adequate remedy at law. Accordingly, as a matter of law, the injunction is fatally defective.7 WHEREFORE, Appellants respectfully pray that the Motion for Contempt be denied and for general relief. 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 6 CR 300. 7 El Tacaso,Inc., 356 S.W.3d at 747
(the trial court's temporary injunction simply recited the conclusory statement that the applicant showed that it would suffer an irreparable injury for which it had no other adequate legal remedy, but such conclusory statement did not satisfy the Rule 683 requirement that a temporary injunction order specify the reasons why the applicant will suffer irreparable harm for which there is no adequate remedy at law, and so the Dallas Court of Appeals had no choice but to declare the injunction void); see also, AutoNation, Inc. v. Hatfield,186 S.W.3d 576
, 581 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (merely stating that a party "will suffer irreparable harm" or "has no adequate remedy at law" does not meet the Rule 683 requirement of specificity). 3 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 Austin, Texas 78701 Tel: 512/474-2449 Fax: 512/474-2622 psmith@reedscardino.com bking@reedscardino.com ATTORNEYS FOR APPELLANT, VICTORY CHEVAL HOLDINGS, LLC 4 CERTIFICATE OF SERVICE By my signature above, I hereby certify that a true and correct copy of the foregoing Supplement to 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 3rd day of September, 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 5