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Antolik v. Antolik

Court of Appeals of Texas, Sixth District, Texarkana

May 15, 2019

VICTOR ANTOLIK, Appellant
v.
DENNIS ANTOLIK, Appellee

          Date Submitted: April 26, 2019

          On Appeal from the 345th District Court Travis County, Texas Trial Court No. D-1-GN-17-000655.

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         Victor Antolik and his brother, Dennis, settled several lawsuits with Garrett Jennings for $1.4 million, with the brothers agreeing to split the settlement proceeds. Under the brothers' oral agreement, Dennis was to receive $600, 000.00, $200, 000.00 of which he received. When Victor failed to pay him the $400, 000.00 balance, Dennis filed this suit alleging that Victor breached their oral contract. After a bench trial, the 354th Judicial District Court of Travis County[1] entered judgment in favor of Dennis for $250, 000.00 and awarded him attorney fees.[2]

         In this pro se appeal, Victor complains that the statute of frauds precludes Dennis' recovery, the trial court abused its discretion by admitting an allegedly confidential document, the trial court committed several errors in its evidentiary rulings, the trial court abused its discretion by denying Victor's motion for continuance, and one of the documents admitted into evidence was fraudulent. Because we find that (1) the statute of frauds does not bar Dennis' recovery, (2) admitting the allegedly confidential document was not an abuse of discretion, (3) denying Victor's motion for continuance was not an abuse of discretion, and (4) Victor's evidentiary complaints and his complaint regarding the allegedly fraudulent document were not preserved, we will affirm the trial court's judgment.

         (1) The Statute of Frauds Does Not Bar Dennis' Recovery

         Victor challenges the trial court's finding that the agreement was performable within one year and its conclusion that the oral agreement was not within the statute of frauds.[3] Within this issue, Victor argues that the time for the performance of the contract was too indefinite to be binding, [4] and if there was an agreement, certain testimony of Dennis shows that it was not to be completed within one year of its making.

         In reviewing a trial court's conclusions of law, we determine whether the trial court correctly applied the law to the facts. BMC Software Belgium, NV v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Monasco v. Gilmer Boating & Fishing Club, 339 S.W.3d 828, 834 (Tex. App.- Texarkana 2011, no pet.). We review conclusions of law de novo. Marchand, 83 S.W.3d at 794; Monasco, 339 S.W.3d at 834.

         Victor does not state whether he challenges the legal or factual sufficiency of the trial court's finding that the agreement was performable within one year. Therefore, we will review it as a challenge to both. We conduct a "legal and factual sufficiency review of a trial court's findings by the same standards applied when reviewing evidence supporting a jury's verdict." Monasco, 339 S.W.3d at 830 (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)).

         A party who challenges the legal sufficiency of a trial court's adverse finding on an issue on which the party has the burden of proof "must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). To make this determination, we "first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary." Bowman v. Davidson, No. 06-14-00094-CV, 2015 WL 3988675, at *1 (Tex. App.-Texarkana July 1, 2015, no pet.) (mem. op.) (quoting Francis, 46 S.W.3d at 241). If the adverse finding is not supported by any evidence, we "then examine the entire record to determine if the contrary proposition is established as a matter of law." Id. (quoting Francis, 46 S.W.3d at 241). We will sustain the issue "only if the contrary proposition is conclusively established." Francis, 46 S.W.3d at 241 (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).

         If the party challenges the factual sufficiency of the evidence on such an issue, he or she "must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Id. at 242 (citing Croucher, 660 S.W.2d at 58). In our review, we "consider and weigh all of the evidence, and [we] set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)).

         In our review, we must credit evidence favorable to the finding if a reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-finder could not. Hampden Corp. v. Remark, Inc., No. 05-13-00529-CV, 2014 WL 2921655, at *6 (Tex. App.-Dallas June 25, 2014, pet. denied) (mem. op.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). In a bench trial, the trial court, as the fact-finder, alone decides the credibility of the witnesses and the weight of their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). As sole arbiter of a witness' demeanor and credibility, the trial court may believe all, part, or none of a witness' testimony. In re E.M., No. 06-17-00083-CV, 2017 WL 5586633, at *2 (Tex. App.- Texarkana Nov. 21, 2017, no pet.) (mem. op.) (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam)). We view the evidence in the light most favorable to the judgment and presume the trial court resolved all conflicts in the evidence in support of the judgment. Wilson, 168 S.W.3d at 820.

         As applicable to this case, [5] the statute of frauds renders an oral agreement unenforceable if it cannot be performed within one year from the date of making the agreement. Monasco, 339 S.W.3d at 838 (citing Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(6) (West 2015); Niday v. Niday, 643 S.W.2d 919, 920 (Tex. 1982) (per curiam)). Whether an agreement is within the statute of frauds is a question of law. Id. (citing Beverick v. Koch Power, Inc., 186 S.W.3d 145, 149 (Tex. App.-Houston [1st Dist.] 2005, pet. denied)). "[W]here the parties do not fix the time of performance and the agreement itself does not indicate that it cannot be performed within one year, the contract does not violate the statute." Niday, 643 S.W.2d at 920 (per curiam) (citing Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex. 1974)). In that situation, the duration of the agreement may be implied from extrinsic evidence. Id. Only if that evidence shows that the agreement cannot be performed within one year will the agreement violate the statute of frauds. Id. "The fact that the entire performance within one year is not required or expected will not bring an agreement within the statute." Monasco, 339 S.W.3d at 838 (citing Niday, 643 S.W.2d at 920); Walker v. Tafralian, 107 S.W.3d 665, 668-69 (Tex. App.-Fort Worth 2003, pet. denied).

         At trial, Dennis testified that, in the underlying lawsuits, he asserted claims against Jennings and Victory Cheval for damages. These lawsuits were eventually settled by Victor selling his shares of Victory Cheval to Jennings and Dennis relinquishing his claims against Jennings and Victory Cheval. The mediation agreement in the Victory Cheval Lawsuits provided that Jennings would pay Victor and Dennis $1.4 million in exchange for Victor's membership shares of Victory Cheval and Victor and Dennis relinquishing their claims against Jennings and Victory Cheval and vacating the leased property. It also provided that the $1.4 million was payable to Victor and Dennis by $750, 000.00 in cash and the delivery of a promissory note for $650, 000.00 that provided for $45, 000.00 payments on the 90th, 180th, and 270th days after execution of the promissory note and the remainder of the principal and interest one year after execution of the promissory note.

         Dennis testified that the settlement of the lawsuits was formalized with an escrow agreement between Jennings and Victor and approved by Dennis sometime around the end of December 2015. The escrow agreement contained substantially the same terms as the mediation agreement. He also testified that, at about the same time, he and Victor made an oral agreement that, in exchange for Dennis releasing his claims against Jennings and Victory Cheval at the closing of the escrow agreement, Victor would pay Dennis $600, 000.00 out of the settlement monies. Victor paid Dennis $200, 000.00 on January 3, 2016. Dennis' testimony regarding when the remaining $400, 000.00 was to be paid was not entirely consistent. He testified that the balance was to be paid "at the end of the year," "within the year," and by January 1, 2017.

         Victor denied that he had an agreement with Dennis to pay him $600, 000.00 or that the $1.4 million was to be paid jointly to Dennis and him. However, he admitted that he represented to the federal government on a net worth statement that he owed Dennis $250, 000.00, although he claimed that that ...


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