Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 26, 2019
Appeal from the 345th District Court Travis County, Texas
Trial Court No. D-1-GN-17-000655.
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice.
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 entered judgment in favor of Dennis for
$250, 000.00 and awarded him attorney fees.
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.
The Statute of Frauds Does Not Bar Dennis' Recovery
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. Within this issue, Victor argues that the
time for the performance of the contract was too indefinite
to be binding,  and if there was an agreement, certain
testimony of Dennis shows that it was not to be completed
within one year of its making.
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.
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)).
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)).
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
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.
applicable to this case,  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).
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
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
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 ...