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).
2

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 fiftyone 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. 
3

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. 
4

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.
5

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. 
6

“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.
7

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 
8

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 
9

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