Amy Litka and the Estate of Timothy Litka v. Stephen Byrkit and Nicole Byrkit

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00292-CV

Amy Litka and the Estate of Timothy Litka, Appellants

v.

Stephen Byrkit and Nicole Byrkit, Appellees

FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY
NO. 23CCV00395, THE HONORABLE PAUL A. MOTZ, JUDGE PRESIDING

MEMORANDUM OPINION

Amy Litka and the Estate of Timothy Litka (collectively, Litka) appeal from the

trial court’s final judgment dismissing their lawsuit against Stephen and Nicole Byrkit and

granting an anti-suit injunction. We will reverse the judgment and remand for

further proceedings.

BACKGROUND

In late 2021, the Byrkits leased residential property from Litka in Belton. The

lease term was to terminate on June 30, 2023. When the Byrkits fell behind on rent in early

2022, Litka initiated eviction proceedings in the justice court (the Eviction Case). While that

case was pending, the parties executed an “Addendum to Lease,” under which the Byrkits had an

option to pay $20,000 before May 15, 2022, to postpone the eviction until June 1, 2022 (the

Option Contract). Relevantly, the Option Contract provided,
Landlord and Tenants agree to the early termination of the lease
agreement – The new and agreed upon expiration date is the 30th
of May 2022 only if the following terms and conditions are met:

...

2. Tenants agree to pay the Landlord $20,000 on or before the
15th day of May 2022. If payment is not received, the Landlord
will move forward with eviction proceedings on or about 16 May
2022. If payment is received, Landlord agrees to move the
eviction court date to on or about 1 June 2022. Payment may be
made through the same manner as rent payments or to Landlord’s
attorney.

3. Tenants agree to remove the Great Pyrenees currently residing
in the home effective immediately, as it is a violation of the lease.

4. Tenants agree to confirm the discontinuance of the unauthorized
childcare business, as required previously, and a violation of the
lease.

...

8. To be clear, if any of the above conditions are not met, the
Landlord will proceed with civil eviction process.

The option deadline passed without the Byrkits making the payment, and Litka

pursued eviction. After the justice court dismissed the Eviction Case due to Litka’s failure to

appear, Litka filed a de novo appeal to the county court, which rendered judgment in Litka’s

favor in June 2022. The judgment ordered the Byrkits to pay June rent and to vacate the

property by June 30, 2022, and awarded costs to Litka. The Byrkits vacated the property in

accordance with the judgment.

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Meanwhile, on May 25, 2022, Litka sued the Byrkits in the same county court,

alleging breach of contract and statutory fraud based on the Option Contract (the First Contract

Case). Litka argued that the Byrkits had breached the Option Contract by failing to (a) pay the

$20,000, (b) remove the dog, and (c) cease the “illicit business” being run out of the premises.

The Byrkits filed a Rule 91a motion to dismiss, arguing that the Option Contract was not binding

because it was an unexercised and unenforceable option agreement and that the facts that Litka

alleged bar recovery as a matter of law. Litka amended her petition, adding new claims for

promissory estoppel and unjust enrichment. On September 20, 2022, the trial court granted the

Rule 91a motion and dismissed Litka’s claims. At the hearing on the motion, the following

exchange occurred:

The Court: So I am going to dismiss the [breach of contract]
cause of action. I don’t see it. I’m going to do it without
prejudice, if you think you have got some kind of cause of action
that you can plead otherwise. But I’m saying what you have pled
here is not sufficient to hold them for breach of contract.

Litka’s Attorney: So this is just specifically in order for us to
amend and not have that claim in there or with the additional facts
you would like alleged?

The Court: I don’t want anything alleged. I don’t like anything
to be alleged. All I’m saying is what is alleged---

Litka’s Attorney: Yes, Judge.

The Court: ---is not---I think they did their either/or. That’s the
way I look at it.

And so I am going to dismiss it, but I’m not going to do it with
prejudice. If there is something you can find someplace else to

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file, file it. But I’m going to say right now that the Defendants’
Motion to Dismiss pursuant to TRCP 91a is granted.

I am going to award attorney’s fees of [$]1,300.

The trial court signed an order, which was prepared by the Byrkits’ counsel, dismissing Litka’s

claims. In signing the order, the trial court crossed out the phrase “with prejudice” in the

following sentences (and initialed its interlineations):

It is, therefore,

ORDERED that Plaintiffs[’] . . . cause of action for breach of
contract is DISMISSED with prejudice.

IT IS FURTHER ORDERED that Plaintiffs’ cause of action for
statutory fraud is DISMISSED with prejudice.

The trial court’s order did not specify the basis on which it was granting the Rule 91a motion.

After awarding the Byrkits attorneys’ fees as the “prevailing parties” and awarding them

contingent appellate attorneys’ fees, the order concluded,

This Order disposes of all claims against all parties in the above-
styled and numbered cause, any relief not granted herein is denied.
This Order is final and appealable.

No appeal was taken from the final judgment.

On April 23, 2023, Litka filed another lawsuit in the same county court, again

asserting claims for breach of the Option Contract, statutory fraud, unjust enrichment, and

promissory estoppel, with the addition of claims for conspiracy and common-law fraud (the

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Second Contract Case). The Byrkits filed a Plea of Res Judicata and requested an anti-suit

injunction. On June 13, 2023, the trial court sustained the plea, granted the anti-suit injunction,

dismissed Litka’s claims with prejudice, and ordered that Litka “and those acting in privity” with

her are “permanently enjoined from filing suit on the same grounds as those in this cause.” Litka

perfected this appeal.

DISCUSSION

Litka contends that the trial court erred by sustaining the Byrkits’ plea of

res judicata and granting the anti-suit injunction. She first argues that because the First Contract

Case was dismissed without prejudice, it was not a final adjudication on the merits, and thus the

first element of res judicata was not met as a matter of law. See Eagle Oil & Gas Co. v. Shale

Expl., LLC, 549 S.W.3d 256, 267 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d) (noting

that when material facts are not disputed, applicability of res judicata presents question of law,

which appellate court reviews de novo); see also Barr v. Resolution Tr. Corp., 837 S.W.2d 627,

628 (Tex. 1992) (noting that res judicata, also known as claim preclusion, “prevents the

relitigation of a claim or cause of action that has been finally adjudicated, as well as related

matters that, with the use of diligence, should have been litigated in the prior suit”). To establish

res judicata—an affirmative defense—a party must show (1) a prior final judgment on the merits

by a court of competent jurisdiction, (2) the same parties or those in privity with them, and (3) a

subsequent action based on the same claims that were raised or could have been raised in the first

action. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); Tex. R. Civ. P. 94

(listing res judicata as affirmative defense).

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We agree with Litka on this point. It is well established that dismissal with

prejudice constitutes a final adjudication on the merits, as if the case had been fully tried and

decided. See Bellingham Enters., LLC v. Colby Constructors, LLC, No. 03-22-00233-CV,

2023 WL 2414983, at *6 (Tex. App.—Austin Mar. 9, 2023, no pet.) (mem. op.); Lentworth

v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (citing Mossler

v. Shields, 818 S.W.2d 752, 754 (Tex. 1991)). In contrast, a dismissal without prejudice means

that the dismissal is granted without adjudicating the merit of the claims. See CTL/Thompson

Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 461 S.W.3d 627, 630 (Tex. App.—Fort Worth

2015, pet. denied); see also Rolls-Royce Corp. v. Heros, Inc., 576 F. Supp. 2d 765, 775–76 (N.D.

Tex. 2008) (holding that dismissal without prejudice under equivalent Federal Rule of Civil

Procedure 12(b)(6) was not adjudication on merits for res judicata purposes). Indeed, when

appropriate, appellate courts routinely modify dismissal orders to reflect that they are without

prejudice to refiling. See, e.g., Ellis ex rel. H.D.E. v. Prince, No. 02-25-00162-CV,

2025 WL 2370582, at *4 (Tex. App.—Fort Worth Aug. 14, 2025, pet. filed) (mem. op.);

Bellingham Enters., LLC, 2023 WL 2414983, at *6. Furthermore, when an order does not state

that the case is dismissed with prejudice, it is presumed that the dismissal is without prejudice.

In re Hughes, 770 S.W.2d 635, 637 (Tex. App.—Houston [1st Dist.] 1989, no writ).

Here, not only are we guided by this presumption, but we have further clues that

the trial court in the First Contract Case intended the dismissal to be without prejudice: (1) first,

the trial court crossed out the phrase “with prejudice” in the order that had been prepared by the

Byrkits’ counsel; and (2) second, the transcript of the hearing on the Byrkits’ motion to dismiss

expressly reflects that the trial court was rendering the dismissal without prejudice due to

potential legal claims or facts with which Litka could potentially cure the existing pleading

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defect. A Rule 91a dismissal “is appropriate in two circumstances: (1) the plaintiff’s petition

alleges too few facts to demonstrate a viable, legally cognizable right to relief; or (2) the petition

alleges additional facts that, if true, bar recovery.” Crockett v. Salinas, No. 03-24-00484-CV,

2025 WL 2470213, at *2 (Tex. App.—Austin Aug. 28, 2025, pet. denied) (mem. op.). “In short,

the plaintiff must plead sufficient facts to supply a legal basis for his claim but not so much that

he affirmatively negates his right to relief.” Guillory v. Seaton, LLC, 470 S.W.3d 237, 240 (Tex.

App.—Houston [1st Dist.] 2015, pet. denied).

Given that the trial court expressly considered whether to grant the Rule 91a

motion with or without prejudice—and ultimately granted it without prejudice, after stating on

the record that Litka might be able to “find” “something” else to file—we presume that the trial

court ruled so to provide Litka another opportunity to cure what arguably was a remediable

pleading defect. Cf. City of Houston v. State Farm Mut. Auto. Ins., 712 S.W.3d 707, 716 (Tex.

App.—Houston [14th Dist.] 2025, no pet.) (holding that trial court erred in denying Rule 91a

motion and rendering dismissal with prejudice, as plaintiff had already had full and fair

opportunity to amend petition). And the Byrkits did not appeal from the Rule 91a dismissal

judgment to contend that it should have been rendered with prejudice, and thus the dismissal

order stands as rendered: without prejudice to refiling and not an adjudication on the merits.

The Byrkits counter that the judgment in the First Contract Case was on the merits

because it was a final judgment, but even final judgments may be without prejudice, and the fact

that a judgment is final for purposes of appeal is irrelevant to whether it is an adjudication on the

merits. See Small v. Specialty Contractors, Inc., 310 S.W.3d 639, 643 (Tex. App.—Dallas 2010,

no pet.) (“Whether the dismissal is with or without prejudice is irrelevant to the question of

whether there are pending claims precluding finality.”); see also Childers v. Advanced Found.

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Repair, L.P., 193 S.W.3d 897, 898 (Tex. 2006) (per curiam) (holding that judgment dismissing

all claims “without prejudice” due to governing arbitration agreement but also stating that it was

“final,” “disposes of all parties and all claims,” and was “appealable” was not interlocutory but

indeed final, appealable judgment). The Byrkits additionally counter that because the trial court

awarded them attorney’s fees as the “prevailing party” on their Rule 91a motion, see Tex. R. Civ.

P. 91a(7), the ruling was necessarily “on the merits.” But as already noted, Rule 91a permits

trial courts to grant the moving party’s motion, dismissing a cause of action without prejudice

because, for instance, the defect is potentially curable. See City of Houston, 712 S.W.3d at 716.

That the plaintiff might later refile a lawsuit based on the same underlying facts in an attempt to

cure the defect does not alter the fact that the movant has “prevailed” on its motion, and the

Byrkits cite no authority supporting their argument that an award of attorney’s fees on a Rule 91a

motion overrides a judgment’s recital that a dismissal is without prejudice.

We find the Brykits’ counterarguments unavailing, sustain Litka’s issue, and hold

that the trial court erred in granting the plea of res judicata and dismissing with prejudice the

Second Contract Case. Additionally, because the only basis supporting the Byrkits’ petition for

the anti-suit injunction was the plea of res judicata, we conclude that the trial court abused its

discretion in granting the anti-suit injunction. We accordingly reverse the trial court’s anti-suit

injunction.

CONCLUSION

We reverse the trial court’s final judgment dismissing with prejudice Litka’s

lawsuit and issuing an anti-suit injunction and remand this cause for further proceedings

consistent with this opinion.

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__________________________________________
Karin Crump, Justice

Before Chief Justice Byrne, Justices Theofanis and Crump

Reversed and Remanded

Filed: May 21, 2026

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