In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-20-00281-CV
________________________
VICTOR ANTOLIK, APPELLANT
V.
DENNIS ANTOLIK, APPELLEE
On Appeal from the 261st District Court
Travis County, Texas
Trial Court No. D-1-GN-20-003056; Honorable Dustin M. Howell, Presiding
August 31, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, Victor Antolik, appeals from the trial court’s Order Granting in Part and
Denying in Part Defendant Dennis Antolik’s Rule 91a Motion to Dismiss.1 By a single
issue, he contends the trial court erred in partially granting the motion because his
1 Appellee, Dennis Antolik, passed away on November 4, 2020, and Victor filed a Suggestion of
Death. Rule 7.1(a)(1) of the Texas Rules of Appellate Procedure permits the deceased party’s name to be
used on all papers. TEX. R. APP. P. 7.1(a)(1).
pleading demonstrates there is a basis in law under the Rule 91a standard supporting his
cause of action.2 See TEX. R. CIV. P. 91a. We affirm.
BACKGROUND
Dennis and Victor are brothers. Dennis owned and operated Cheval Manor, LLC,
a polo facility. In 2014, Cheval Manor filed for bankruptcy protection and sold its facility
to Victory Cheval Holdings, LLC, a company owned forty-nine percent by Victor and fifty-
one percent by Garrett Jennings. Pursuant to the sale, Dennis was to receive a leaseback
of the facility to operate equine activities.
After a dispute arose regarding the leaseback, Victory Cheval filed suit against
Victor and Dennis. The parties reached a settlement wherein Jennings agreed to
purchase Victor’s interest in Victory Cheval for $1.4 million. The settlement was
memorialized in a Mediation Agreement followed by an Escrow Agreement. According
to the Escrow Agreement, Jennings would pay $750,000 with certified funds and execute
a promissory note for the remaining $650,000. Dennis agreed to waive any claims against
Jennings. The Escrow Agreement was signed by both Dennis and Victor.
According to Dennis, he and Victor had an oral agreement to split the proceeds of
the $1.4 million. Dennis asserted he was to receive a total of $600,000 with an initial
installment of $200,000 and $400,000 at a later date when Jennings paid the balance
2 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to
this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN.
§ 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this
court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor
court. TEX. R. APP. P. 41.3.
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due. It is undisputed that Victor paid Dennis $200,000. However, the remaining $400,000
was not paid and Dennis filed suit against Victor for the balance.
Subsequent to the sale of Victory Cheval, Victor was convicted of tax fraud and
went to prison. As part of his presentencing disclosure, he represented in a disclosure of
assets that he owed Dennis $250,000. When Dennis filed suit, Victor was incarcerated
and initially, he represented himself. He filed a motion for continuance which the trial
court denied for not being in writing nor supported by affidavit. Victor eventually obtained
counsel to represent him at trial.
The case proceeded to trial before the bench and Victor participated by phone. At
trial, Dennis introduced Plaintiff’s Exhibit 34 without any objection from Victor’s counsel.
The exhibit is a document entitled simply “Agreement.” Paragraph 3(a) provides in part,
as follows:
Jennings’ payment to Antoliks of $1.4 million, payable $750,000 in cash
within thirty (30) days of exercising such option and delivery of a promissory
note in the principal amount of $650,000, with interest . . . with a balloon
payment of all unpaid principal and interest on the first anniversary of the
note, guaranteed by Garrett Jennings . . . .
(Emphasis added). The Agreement is undated and is signed by Victor, Dennis, and
Jennings. Victor claims the Agreement is a forgery and challenges it partly because the
signature page is on a sheet of notebook paper unlike the first two pages of the
Agreement.3 Dennis claims the Agreement is in fact the Mediation Agreement that
resulted from the parties reaching a settlement. Following the presentation of evidence,
3 Victor had a handwriting expert review the Agreement but the expert’s report was not a part of the
trial record.
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judgment was rendered in favor of Dennis for $250,000 on July 2, 2018. After Victor’s
motion for new trial was denied, he appealed the judgment.
In affirming the trial court’s judgment, the Texarkana Court of Appeals found there
was sufficient evidence to show that Dennis and Victor had an enforceable oral
agreement, which Victor breached, to split the proceeds of the sale of Victory Cheval with
$600,000 payable to Dennis and $400,000 remaining unpaid. See Antolik v. Antolik, No.
06-18-00096-CV, 2019 Tex. App. LEXIS 3869, at *1 (Tex. App.—Texarkana May 15,
2019, pet. denied) (mem. op.).4 After the decision from the Texarkana Court of Appeals
became final, Victor filed his Original Petition for Bill of Review and Request for
Disclosure. Two months later, on August 21, 2020, he filed his First Amended Petition
for Bill of Review in the trial court seeking review of the July 2, 2018 judgment in favor of
Dennis. By his amended pleading and exhibits thereto, he alleged that Dennis obtained
a favorable judgment due to a fraudulent document (the Agreement) which, due to his
incarceration, he was unable to see until he obtained a copy of the appellate record. In
his amended petition for bill of review and in support of his argument that he and Dennis
did not have an agreement to split the proceeds of the sale, Victor references paragraph
4.01 of the Escrow Agreement as an incorporation clause that specifically provided “there
were no other agreements between the parties.” Section 4.01 provides, in part, as
follows:
1.04 OWNERSHIP/USE: Subject to the terms hereof, including
without limitation, limitations on voluntary or involuntary use, hypothecation
or transfer, the Escrow Deposit shall remain the exclusive property of the
4 The decision from the Texarkana Court of Appeals was included as an exhibit to the Rule 91a
motion to dismiss.
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Seller until disbursed in accordance with this Escrow Agreement, save and
except that Seller shall be deemed the owner and holder of the $650,000
Promissory Note in the event of default by Purchaser under either the
$650,000 Note or the Deed of Trust Securing same and/or in the event
Seller is obliged to file suit for any default by Purchaser. The Escrow Agent
shall not have the power to use, transfer, or otherwise dispose of the Escrow
Deposit except as provided in this Agreement. The Escrow Agent shall not
give, provide, transfer, or otherwise make available the funds in the Escrow
Deposit or any other documents in escrow to any party without the express
written consent of both parties, unless otherwise directed by a court of
competent jurisdiction.
A. The parties agree that the funds and property in the Escrow
Deposit shall not be used as collateral or security for any purpose. No party
may assign, in whole or in part, or delegate any of their respective rights,
title, and interest in and to the funds and property in the Escrow Deposit or
any other document in escrow, without the written consent of all parties.
Dennis moved to dismiss the amended petition for bill of review under Rule 91a.
He asserted the fraudulent document referred to by Victor was in fact the Mediation
Agreement between the two brothers and Jennings that resulted from the settlement
between the parties. He also claimed that Victor was seeking to re-litigate whether they
had an oral agreement to split the proceeds from the sale to Jennings—an issue already
decided by the Texarkana Court of Appeals. The trial court granted Dennis’s motion, in
part, by dismissing Victor’s claims but denied Dennis’s request for costs and attorney’s
fees. Victor now appeals the dismissal.
STANDARD OF REVIEW
A court of appeals reviews the merits of a Rule 91a motion “de novo because the
availability of a remedy under the facts alleged is a question of law and the rule’s factual
plausibility standard is akin to a legal-sufficiency review.” City of Dallas v. Sanchez, 494
S.W.3d 722, 724 (Tex. 2016). Rule 91a provides a procedure for dismissal of a case that
has no basis in law or no basis in fact. TEX. R. CIV. P. 91a.
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“A cause of action has no basis in law if the allegations, taken as true, together
with reasonable inferences drawn from them, do not entitle the claimant to the relief
sought.” Id. “A cause of action has no basis in fact if no reasonable person could believe
the facts pleaded.” Id. Except as required by 91a.7 (award of costs and attorney fees),
the court “may not consider evidence in ruling on the motion and must decide the motion
based solely on the pleading of the cause of action . . . .” TEX. R. CIV. P. 91a.6.
Also, the trial court construes the pleadings liberally in favor of the plaintiff, looks
to the plaintiff's intent, and accepts the plaintiff's factual allegations as true; and, if needed,
draws reasonable inferences from the factual allegations to determine if the cause of
action has a basis in law or fact. In re Farmers Tex. Cty. Mut. Ins. Co., 604 S.W.3d 421,
425-26 (Tex. App.—San Antonio 2019, orig. proceeding). Dismissal of a cause of action
under Rule 91a is a harsh remedy with fee-shifting consequences; thus, an appellate
court strictly construes the rule’s requirements. Bedford Internet Office Space, LLC v.
Tex. Ins. Grp., Inc., 537 S.W.3d 717, 720-21 (Tex. App.—Fort Worth 2017, pet. dism’d).
Generally, the trial court may not consider evidence in ruling on the motion and
must decide the motion based solely on the pleading of the cause of action, together with
any pleading exhibits permitted by the Texas Rules of Civil Procedure. See TEX. R. CIV.
P. 91a.6.5 See also AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d
703, 706 (Tex. 2018); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 880 (Tex.
2018); Sanchez, 494 S.W.3d at 724. In deciding whether the trial court properly granted
a motion to dismiss under Rule 91a, a reviewing court applies the fair-notice pleading
5 Rule 59 permits notes, accounts, bonds, mortgages, records, and all other written instruments
that may be part of the claim sued on to be part of the pleadings. TEX. R. CIV. P. 59.
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standard in determining whether the allegations in the petition were sufficient to allege a
cause of action. Thomas v. 462 Thomas Family Props., LP, 559 S.W.3d 634, 639-40
(Tex. App.—Dallas 2018, pet. denied). Under that standard, a court considers whether
the opposing party “can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant.” Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 896 (Tex. 2000). Stated differently, the fair-notice standard measures
whether the pleading has provided the opposing party sufficient information to enable that
party to prepare a defense or a response. See First United Pentecostal Church of
Beaumont v. Parker, 514 S.W.3d 214, 224-25 (Tex. 2017) (citing Kopplow Dev., Inc. v.
City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013); Roark v. Allen, 633 S.W.2d 804,
810 (Tex. 1982)).
BILL OF REVIEW
“A bill of review is brought as a direct attack on a judgment that is no longer
appealable or subject to a motion for new trial.” Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 504 (Tex. 2010). To obtain an equitable bill of review, a petitioner must
generally plead and prove (1) a meritorious claim or defense to the judgment, (2) which
the petitioner was prevented from making by official mistake or by the opposing party’s
fraud, accident, or wrongful act, (3) unmixed with any fault or negligence on the
petitioner’s own part. Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015) (citing King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751-52 (Tex. 2003)).
Fraud in relation to attacks on final judgments is either extrinsic or intrinsic. Only
extrinsic fraud will support a bill of review. King Ranch, Inc. 118 S.W.3d at 752 (citation
omitted). Extrinsic fraud denies a party the opportunity to fully litigate at trial all rights or
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defenses that could have been presented. Id. Intrinsic fraud relates to the merits of the
issues that were presented and presumably were or should have been settled in the
former action. Id. Examples of intrinsic fraud include fraudulent instruments, perjured
testimony, or any matter which was actually presented to and considered by the trial court
in rendering the judgment being challenged. Id.
ANALYSIS
Victor contends the trial court erred in granting Dennis’s motion to dismiss his
amended petition for bill of review. He claims his pleading presents a basis in law under
Rule 91a. We disagree.
By his amended petition for bill of review, Victor sought to set aside the trial court’s
July 2, 2018 judgment based on a document that was admitted into evidence at trial
without objection—Plaintiff’s Exhibit 34. He was not directly attacking a judgment that
was no longer appealable or subject to a motion for new trial. In fact, his motion for new
trial had been denied and his appeal of the judgment was unsuccessful. A bill of review
may not be used as an additional remedy after the denial of a motion for new trial or after
an unsuccessful appeal. McIntyre v. Wilson, 50 S.W.3d 674, 679 (Tex. App.—Dallas
2001, pet. denied).
At trial, Victor was represented by counsel, and he participated by phone. He was
not prevented from presenting his claim at trial by official mistake or by any fraud,
accident, or wrongful act by Dennis. The allegedly fraudulent document was presented
to the trial court and his counsel did not object to the document. Moreover, viewing
Victor’s amended pleading and accepting his allegations as true, he has not shown
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entitlement to relief via a bill of review. His claim that the Agreement is a forgery is intrinsic
fraud and will not support a bill of review. King Ranch, Inc. 118 S.W.3d at 752 (citation
omitted). We conclude the allegations in Victor’s First Amended Petition for Bill of Review
have no basis in law and do not entitle him to the relief he seeks. The issues he presents
in the amended petition for bill of review have already been unsuccessfully litigated and
he is merely attempting further review of the same claim. Applying a de novo review, we
find the trial court did not err in granting, in part, Dennis’s motion to dismiss under Rule
91a. Victor’s sole issue is overruled.
CONCLUSION
The trial court’s Order Granting in Part and Denying in Part Defendant Dennis
Antolik’s Rule 91a Motion to Dismiss is affirmed.
Patrick A. Pirtle
Justice
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