The Browning Family Mineral Partnership, Hollis M. Browning, and Bill T. Browning v. Callahan Draw LLC, Rudd F. Owen, Ross G. Owen, Jeffre Owen Littleton, and Dayna Owen White

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
————————————

No. 08-24-00399-CV
————————————

The Browning Family Mineral Partnership,
Hollis M. Browning, and Bill T. Browning, Appellants

v.

Callahan Draw LLC, Rudd F. Owen, Ross G. Owen,
Jeffre Owen Littleton, and Dayna Owen White, Appellees

On Appeal from the 143rd District Court
Reeves County, Texas
Trial Court No. 24-06-25226-CVR

M E MO RA N D UM O PI NI O N

The parties in this case each argue that they inherited an interest in trust property that was

owned by Frank Day at the time of his death. Appellees Callahan Draw LLC, Rudd F. Owen, Ross

G. Owen, Jeffre Owen Littleton, and Dayna Owen White (the Owens) are descendants of or
successors in interest to Frank’s daughters. They claim that Frank’s will failed to make a complete

disposition of his separate property, including his interest in the Zemula Johnson Estate Trust, and

that it passed intestate to his daughters from whom they inherited it. Appellants Hollis M.

Browning, Bill T. Browning, and the Browning Family Mineral Partnership (the Brownings) are

the descendants and successors of Frank’s wife, Venita F. Day, from a previous marriage. They

claim that Frank’s will bequeathed his trust interest to Venita and that they inherited that interest

upon Venita’s death. The primary question on appeal, however, is not the construction of Frank’s

will, but whether the Brownings can maintain a bill of review action to set aside a prior judgment

declaring that the Owens are the current owners of Frank’s portion of the trust property.

We affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal involves the interplay of three different lawsuits, each discussed below.

A. Trust litigation

In 2012, the trustee of the Zemula Johnson Estate Trust filed a petition for declaratory

judgment to confirm the termination of the trust and identify the owners of the trust property. The

petition listed two groups of people. The first were the interest owners at the time of the trust’s

1967 execution and delivery, one of whom was Frank Day. The second list was of the names and

addresses of people that the trustee believed to be the current owners of the trust interests. The

second list included Frank’s daughters, Mary Frank Owen and Effie Jean Bay, but not Venita or

the Brownings. The petition expressly stated that it was not requesting personal service on the

people named in the second list as current owners because the trustee anticipated that they would

sign waivers of service and entries of appearance. The petition did request, however, service of

citation by publication on “unknown heirs, devisees, legatees, successors, unknown spouses, if

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any, of the persons, their respective heirs, successors and assigns, who executed and delivered the

1967 Trust.” The return of service and copies of the published citation show that the citation was

to the people listed as current owners and their successors and heirs and not, as requested, to the

unknown heirs of the owners in 1967. This classification of defendants did not include the

Brownings who were not named as current owners in the petition and are not heirs of anyone

named as current owner. Tex. R. Civ. P. 111 (When defendants are unknown heirs, a citation by

publication “shall be addressed to the defendants by a concise description of their classification,

as ‘the Unknown Heirs of A.B., deceased[.]’”).

The Owens intervened in the trust litigation and filed motions for summary judgment.

Nothing in the record shows that they served the Brownings when they intervened or that the

Brownings appeared in the suit. In 2021, the trial court granted summary judgments for the Owens,

declaring that they owned a combined 24/1008 of the trust property.

B. 2023 Suit

In 2023, after the summary judgments in the trust litigation, the Brownings learned of the

judgments. They filed suit for trespass to try title, declaratory judgment, and conversion. Their

petition alleged that “[u]nbeknownst to Plaintiffs and without any notice to Plaintiffs, Defendants

intervened in the Trust Litigation and asserted, through motions for summary judgment, they

inherited the Interest of Frank Day in the Trust through his Will.” Despite the prior judgments,

they claimed that Frank’s will bequeathed his interest in the trust to his wife, Venita, and that the

Brownings, as Venita’s heirs, were the rightful owners of the 24/1008 of the trust.

The Owens filed a motion to dismiss the Brownings suit under the Texas Citizen’s

Participation Act (TCPA). They argued that the Brownings’ suit was based on or in response to the

trust litigation because “[t]he only way [the Brownings] can allege and prove their trespass to try

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title action is by asserting that Defendants unlawfully ‘dispossessed [them] by intervening and

obtaining judgments to the trust property for the same—all of which are protected under the ‘right

of petition.’” They also asserted that the final judgments in the trust litigation barred the

Brownings’ claims under the principles of collateral estoppel and res judicata.

The trial court granted the Owens’ motion and dismissed the Brownings’ suit. The

Brownings appealed that order to this Court, but then voluntarily dismissed their appeal. Browning

Family Mineral P’ship v. Callahan Draw, LLC, No. 08-24-00006-CV, 2024 WL 525403, at *1

(Tex. App.—El Paso Feb. 9, 2024, no pet.) (mem. op).

C. Bill of Review (the underlying suit)

After dismissing their appeal, the Brownings filed a bill of review in the trial court. They

alleged that they are entitled to set aside the summary judgments in the trust litigation because they

“received no notice, service, or any information about the proceeding until after they had been

deprived of their property.” The Owens responded and filed three dispositive motions: a Rule 91a

motion to dismiss a motion to dismiss under the Texas Citizens Participation Act, and a traditional

motion for summary judgment. After a non-evidentiary hearing, the trial court granted all three

motions, dismissed the Brownings’ claims, and awarded the Owens $50,000 in attorney’s fees,

conditional fees of $100,000 if the Brownings appealed, and up to $90,000 for further appeals to

the Texas Supreme Court.

D. Issues on appeal

The Brownings raise six issues on appeal. Issue one through five are as follows:

(1) Were the Brownings properly served with citation by publication in the trust

litigation?

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(2) Were the Owens required to name and serve the Brownings when they intervened in

the trust litigation?

(3) Can the language of Frank’s will be construed to exclude the trust interest and result

in a partial intestacy?

(4) Was the Brownings’ bill of review barred by res judicata or collateral estoppel?

(5) Does the TCPA apply to a bill of review?

Each of these issues are subsidiary questions that help to answer the sixth issue:

(6) Did the trial court err in granting each motion and dismissing the Brownings’ bill of

review?

To facilitate our analysis, we focus on each of the dispositive rulings—the Rule 91a dismissal,

the TCPA dismissal, and the summary judgment—each with their own distinct requirements and

burdens. We address the subsidiary issues as they apply to each ruling.

II. APPLICABLE LAW

A. Bill of Review cause of action

As explained above, the case that is the subject of this appeal was a petition for bill of

review. A bill of review is a direct attack on a default judgment that can be brought after the time

for a motion for new trial or an appeal. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 504

(Tex. 2010). “The grounds upon which a bill of review can be obtained are narrow because the

procedure conflicts with the fundamental policy that judgments must become final at some point.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751–52 (Tex. 2003). The elements of a bill of

review are: “(1) a meritorious defense to the cause of action alleged to support the judgment, (2)

that the petitioner was prevented from making by the fraud, accident or wrongful act of his or her

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opponent, and (3) the petitioner was not negligent.” Id. However, if, like in this case, the plaintiff

in a bill of review alleges a due process violation such as lack of service, the plaintiff does not

need to prove the first two elements and the third is conclusively established by proof of non-

service. Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012).

B. Affirmative Defenses—Res Judicata and Collateral Estoppel

Res judicata bars claims that have already been litigated or that “arise out of the same

subject matter and that could have been litigated in the prior action.” Amstadt v. U.S. Brass Corp.,

919 S.W.2d 644, 652 (Tex. 1996). “The doctrine seeks to bring an end to litigation, prevent

vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent

double recovery.” Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). A claim

is barred by res judicata if there is proof of three elements: “(1) a prior final judgment on the merits

by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a

second action based on the same claims as were raised or could have been raised in the first action.”

Amstadt, 919 S.W.2d at 652. “To determine whether a prior and later lawsuit involve the same

basic subject matter, we focus on the factual basis of the complaint.” Id. at 653.

Whereas res judicata precludes relitigation of claims, “[t]he doctrine of collateral estoppel

precludes relitigation of ultimate issues of fact actually litigated and essential to the judgment in a

prior suit.” Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992) (emphasis added).

A defendant asserting a collateral estoppel defense “must establish (1) the facts sought to be

litigated in the second action were fully and fairly litigated in the first action; (2) those facts were

essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first

action.” Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

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III. ANALYSIS
A. Rule 91a dismissal

Texas Rule of Civil Procedure 91a allows for the dismissal of baseless lawsuits:

[A] party may move to dismiss a cause of action on the grounds that it has no basis
in law or fact. A cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them, do not entitle the claimant
to the relief sought. A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.

Tex. R. Civ. P. 91a.1. A court “must decide the motion solely on the pleading of the cause of action,

together with any pleading exhibits permitted by Rule 59.” Id. at 91a.6 “[W]e construe the

pleadings liberally in favor of the petitioner and accept as true the factual allegations, although we

need not accept as true any legal conclusions.” Broder v. Nexstar Media Inc., No. 03-22-00363-

CV, 2024 WL 3207501, at *5 (Tex. App.—Austin June 28, 2024, pet. denied) (per curiam) (mem.

op.). A dismissal under Rule 91a is reviewed 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).

The Owens’ motion to dismiss under Rule 91a argued that the bill of review lacks a basis

in law because Frank’s will did not bequeath his interest in the trust to Venita, leaving the

Brownings with no claim to the property or standing to challenge the judgments. But Rule 91a

focuses on the pleading of a cause of action which in this case is a bill of review, and whether the

plaintiff would be entitled to the relief sought if all the allegations are taken as true. Tex. R. Civ. P.

91a.1, 91a.6. As discussed above, a bill of review based on non-service has that fact as its only

element. By pleading that they “received no notice, service, or any information about the [trust

litigation],” the Browning’s pleaded the necessary elements of a bill of review. Taking this

allegation as true, as we must at this stage, that fact alone would entitle the Brownings to the relief

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they sought. Mabon, 369 S.W.3d at 810 (“[O]nce a bill-of-review plaintiff proves the absence of

service or the lack of notice of the dispositive trial setting, the plaintiff is then relieved of proving

the traditional bill-of-review elements and the court should grant the plaintiff’s bill of review.”).

The bill of review as pleaded, therefore, has a basis in the law.

The Owens also argued that they were entitled to a dismissal under Rule 91a based on their

affirmative defenses of res judicata and collateral estoppel. A dismissal under Rule 91a can be

based on affirmative defenses but even when the motion is based on a defense, the trial court can

dismiss only if the plaintiff’s petition conclusively establish the defenses. Bethel v. Quilling,

Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). The petition for bill

of review includes allegations about the trust litigation judgments, but not the 2023 judgment. It

states,

This Court has exclusive jurisdiction and is the exclusive venue to hear this matter
as it seeks relief in the form of a Bill of Review from the judgment in the 143rd
Judicial District Court of Reeves County, Texas in Cause No. 12-11-20264-CVR in
the matter styled In the Matter of Zemula Johnson Residuary Estate Trust.

As explained above, a bill of review, like an appeal, is a direct attack of a final judgment.

By its nature, there must be a final judgment to challenge. That same final judgment cannot also

act as a bar to the challenge, otherwise, bills of review, or even appeals for that matter, would never

be available remedies. For this reason, res judicata does not generally bar bills of review. Gill v.

Vordokas, 656 S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (“Because a bill

of review has a conflicting purpose—i.e., to set aside a final judgment—res judicata is not normally

a defense to a bill of review[.]”). The exception to this rule, which is discussed below, is when

there has been a prior challenge to the judgment. Since the Brownings’ pleadings do not allege

anything about a prior challenge to the trust litigation judgments, that basis for a dismissal under

Rule 91a is not conclusively established by the Brownings’ pleadings.

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Because the petition does not conclusively establish the Owens’ affirmative defense, they

were not entitled to a dismissal under Rule 91a. C.V.P.G. Family Tr. v. PlainsCapital Bank, Tr. of

Guerra Mineral Tr., No. 08-23-00320-CV, 2024 WL 2445793, at *6 (Tex. App.—El Paso May 23,

2024, no pet.) (mem. op.) (reversing a Rule 91a dismissal because the petition’s allegations did not

establish res judicata when the petition contained no information about the existence of a final

judgment).

We sustain the Brownings’ sixth issue as it pertains to the Rule 91a dismissal and reverse

the trial court’s Rule 91a order dismissing their suit.

B. TCPA Dismissal and Attorney’s Fees

The trial court also dismissed the Brownings’ case and awarded attorney’s fees pursuant to

the TCPA. 1 Tex. Civ. Prac. & Rem. Code Ann. § 27.009 (requiring the court to award reasonable

attorney’s fees if dismissing a case under the TCPA). “The TCPA’s purpose is to identify and

summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss

meritorious lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015); Tex. Civ. Prac. & Rem.

Code § 27.002 (purpose is “to encourage and safeguard the constitutional rights of persons to

petition, speak freely, associate freely . . . at the same time, protect the rights of a person to file

meritorious lawsuits for demonstrable injury”). Under the Act, a party can file a motion to dismiss

a claim if it “is based on or is in response to a party’s exercise of the right of free speech, right to

petition, or right of association.” Tex. Civ. Prac. & Rem. Code Ann. §27.003(a).

The parties bear shifting burdens when a TCPA motion to dismiss is filed. First, the movant

must show that the TCPA applies by demonstrating that the nonmovant’s claim is “based on or is

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The Owens had also requested attorney’s fees in conjunction with their motion to dismiss under Rule 91a. Tex. R.
Civ. P. 91a.7 (allowing for attorney’s fees to be awarded to the prevailing party in a Rule 91a dismissal hearing).
However, at the hearing, they withdrew that request, and the trial court’s order did not award fees under that rule.

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in response to” the movant’s exercise of his constitutional right of association, speech, or petition.

Tex. Civ. Prac. Code Ann. § 27.005(b); Doe v. Cruz, 683 S.W.3d 475, 487 (Tex. App.—San

Antonio 2023, no pet.). If the movant meets that burden, the nonmovant must then “establish[] by

clear and specific evidence a prima facie case for each essential element of its claim” after which

the burden returns to the movant to “establish[] an affirmative defense or other grounds on which

the moving party is entitled to judgment as a matter of law.” Tex. Civ. Prac. Rem. Code Ann.

§ 27.005(c), (d). We review de novo a dismissal under the TCPA. Landry’s, Inc. v. Animal Legal

Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021)

To meet the initial burden of showing that the TCPA applies, a movant must show a nexus

between the protected rights and the claims such that exercise of the right to associate, speak, or

petition is a main ingredient, fundamental part, or factual basis of the nonmovant’s claim. Ernst

& Young, LLP v. Ryan, LLC, No. 01-21-00603-CV, 2023 WL 4239350, at *8 (Tex. App.—Houston

[1st Dist.] Jun. 29, 2023, pet. filed) (mem. op.); Newstream Roanoke 6.125, LLC v. Shore, No. 02-

22-00506-CV, 2023 WL 5615871, at *4 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem.

op.); Apache Corp. v. Apollo Expl., LLC, No. 11-21-00295-CV, 2023 WL 3511262, at *3

(Tex. App.—Eastland May 18, 2023, no pet.) (mem. op.). The Owens failed to clear this hurdle.

The Owens argue that the there was a nexus between their filings in the trust litigation and

the Brownings’ claims because the Brownings “would not have filed the bill of review but for [the

Owens’] TCPA-protected actions” of filing interventions and motions for summary judgment in

the trust litigation. Such an expansive interpretation of the TCPA, however, would mean that it

applies to all counterclaims, bills of review, and appeals because they are all in response to another

party’s legal action and none would be filed had the opposing party not exercised their right to

petition. The Owens also point to statements the Brownings made in their petition that the trust

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litigation was “a case of theft-by-suit” and that the Owen parties “exercised control and dominion

over the property” by “seek[ing] transfer of the Interest to them as part of the Trust Litigation.”

However, simply making these statements does not by itself provide a nexus between the claims

and the exercise of the right to petition.

Instead, the TCPA applies when the “content, substance, or communicative nature” of the

court filings is the basis of the nonmovant’s claims. Hanna v. Williams, 681 S.W.3d 416, 424–25

(Tex. App.—Austin 2023, pet. denied). For example, in Doe v. Cruz, Doe, the plaintiff sued Cruz

for sexual assault and battery of a minor child. 683 S.W.3d at 484. His petition included a redacted

photograph of Cruz in which Cruz appeared to be nude. Id. at 485. Cruz filed counterclaims,

including one for revenge porn based on the inclusion of the photograph in Doe’s filing. Id. The

Court held that the photograph that was the basis of the counterclaim was “a communication in or

pertaining to . . . a judicial proceeding” and therefore Doe met his initial burden of showing that

the TCPA applied. Id. at 489; Tex. Civ. Prac. & Rem. Code Ann. § 27.001(4)(A)(i); see also Hanna,

681 S.W.3d at 424–25 (TCPA did not apply to plaintiff’s suit against her former attorneys because

her claims were based on the quality of her attorney’s work, overbilling, and misrepresentations to

her, not the communications made in the court filings.); Walker v. Lunenberg, 679 S.W.3d 883,

888–89 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (basis of property suit was dispute about

ownership and not statements or communications made in a filed warranty deed).

The nexus requirement is also met when the alleged wrongful act is the legal filing itself.

In Judwin Properties Inc. v. Lewis, plaintiff sued the seller of property for misrepresentations about

protective covenants. 615 S.W.3d 338, 341 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The

seller counterclaimed alleging that the plaintiff breached his contract by filing the lawsuit. Id. at

347. The court held that the TCPA applied because the counterclaim was based on the exercise of

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the buyer’s right to petition; see also Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin

2015, no pet.) (TCPA applied because defendants’ counterclaim alleged that plaintiffs’ lawsuit

constituted an intentional interference with a contract was therefore based on or in response to the

Plaintiffs exercise of their right to petition).

Once again, the basis of the Brownings’ bill of review is that they received no service or

notice in the trust litigation. They do not allege or base their claims of no service on any

communication or statement made in any of the Owens’ court filings. Nor did the Brownings allege

that the filings (interventions and motions for summary judgment) themselves were the wrongful

act. Even though the Brownings’ petition describes the trust litigation as “theft-by-suit,” that

description does not constitute a nexus because the Brownings’ cause of action was not theft.

Instead, the main ingredient or factual predicate of the Brownings’ bill of review is a due process

violation (lack of service) that would entitle them to set aside a prior judgment. Broder, 2024 WL

3207501, at *8 (TCPA did not apply to equitable bill of review because it was based on alleged

due process violations, not the statements that were the basis of the original defamation suit).

Because the Owens did not meet their initial burden of showing that the Brownings’ bill of

review was based on or in response to the Owens’ exercise of the right to petition, the trial court

erred in granting their TCPA motion. We sustain the Brownings fifth issue and sixth issue as it

pertains to the TCPA dismissal, and we reverse the order dismissing the case and granting

attorney’s fees.

C. Traditional summary judgment

Finally, the trial court also disposed of the case by summary judgment. With a summary

judgment, unlike a Rule 91a dismissal, the Owens were not confined to the Brownings’ pleadings

and could present evidence in support of their motion. Tex. R. Civ. P. 166a(c). And unlike the

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TCPA motion to dismiss, the Owens did not need to show any nexus between the Brownings’

claims and the exercise of their constitutional rights. Id. 166a(a).

(1) Standard of review

A party may move for traditional summary judgment when “there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.” Tex. R. Civ. P.

166a(c). When the movant moves for summary judgment on the other party’s claims, it must

conclusively negate an element of the plaintiff’s cause of action. Randall’s Food Markets, Inc. v.

Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When the ground for summary judgment is the

movant’s affirmative defense, he has the burden to conclusively establish the defense. Exxon Mobil

Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) The burden does not shift to the nonmovant

to respond or produce evidence unless the movant meets her burden. Draughon v. Johnson, 631

S.W.3d 81, 87–88 (Tex. 2021).

We review summary judgments de novo. Id. In our review, “we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.” KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181

(Tex. 2019). When the trial court does not specify in its order the ground on which it granted

summary judgment, we must affirm if the judgment is proper on any ground. FM Properties

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

The Owens’ motion for summary judgment argues that the Brownings were served with

citation in the trust litigation and therefore all three elements of a bill of review apply. They

asserted that their evidence negated all three elements or, alternatively, that they conclusively

established their affirmative defenses of res judicata and collateral estoppel. Because we hold that

the Owens were entitled to summary judgment on their affirmative defense of res judicata, we

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address only that ground. Tex. R. App. P. 47.1 (requiring courts of appeal to address only issues

“necessary to final disposition of the appeal”).

(2) Affirmative Defense—Res Judicata

As explained above, res judicata bars the bill of review if the subject matter was or could

have been litigated in a previous suit. The factual basis of the underlying bill of review is whether

the Brownings were served with citation in the trust litigation. We must therefore decide whether

the issue of service of citation in the trust litigation was previously litigated or could have been

litigated in either of the two prior suits.

We have already explained that res judicata does not usually bar bills of review because

the existence of a final judgment cannot preclude a challenge of that judgment. Therefore, the bill

of review is not barred by the trust litigation judgments. However, when the final judgment was

already the subject of a previous challenge, the previous challenge does bar subsequent challenges.

Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980) (“a bill of review may not be used as an additional

remedy after one has timely filed a motion to reinstate and a motion for new trial and has made a

timely but unsuccessful appeal”); Chandler v. Chandler, 991 S.W.2d 367, 393 (Tex. App.—El Paso

1999, pet. denied) (prior bill of review barred further collateral attack of divorce decree); Gill v.

Vordokas, 656 S.W.3d 398, 401 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (“[R]es judicata

is not normally a defense to a bill of review, except in situations where a party petitions for multiple

bills of review.”); Joiner v. Vasquez, 632 S.W.2d 755, 756 (Tex. App.—Dallas 1981, no writ) (op.

on reh’g) (en banc) (holding that a bill of review was barred by a judgment in an earlier bill of

review); Alexander v. Alexander, No. 03-12-00688-CV, 2014 WL 2211355, at *2 (Tex. App.—

Austin May 23, 2014, no pet.) (mem. op.) (same); Tompkins v. Tompkins, No. 06-03-00067-CV,

2003 WL 23101088, at *1 (Tex. App.—Texarkana Dec. 30, 2003, no pet.) (mem. op.) (same). The

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Owens’ res judicata defense turns, then, on whether the Brownings’ 2023 case constituted a

challenge to the trust litigation judgments.

In addition to direct attacks such as appeals or bills of review, void judgments can also be

challenged by collateral attack. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012);

Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). Unlike a direct attack which has the

“purpose of correcting, modifying, or vacating the judgment,” a collateral attack “is an attempt to

avoid the effect of a judgment . . . in order to obtain some specific relief which the judgment

currently stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). A

collateral attack can take many different forms. It can be raised as a defense to enforcement of the

prior judgment. Sweetwater Austin Properties, L.L.C. v. SOS All., Inc., 299 S.W.3d 879, 885

(Tex. App.—Austin 2009, pet. denied) (“Examples of collateral attacks include a defendant’s

attempt to deny the existence of a judgment debt in an enforcement action on the judgment[.]”).

Or it can be part of a suit seeking affirmative relief that requires the court to determine that the

prior judgment is invalid. Id. (“We recognize the existence of case law indicating that a collateral

attack is any proceeding to avoid the effect of a judgment.”); Luttrell v. El Paso Cnty., 555 S.W.3d

812, 828 (Tex. App.—El Paso 2018, no pet.) (“in some instances, a party may bring a collateral

challenge to a judgment in a declaratory judgment proceeding, seeking to have the judgment

declared void and set aside”); Schmidt v. Stanolind Oil & Gas Co., 332 S.W.2d 743, 744

(Tex. App.—Texarkana 1960, no writ) (finding that a trespass to try title suit was a collateral attack

on a former judgment).

The petition filed by the Brownings in their 2023 suit acknowledged that there were final

judgments regarding the ownership of the trust property, but they alleged that the actions in that

case were taken without their knowledge and without any notice to them. Despite the prior

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judgments, the Brownings requested that the trial court quiet title in them. Because the 2023 suit

sought to avoid the effect of the trust litigation judgments, it was a collateral attack. Biaza v. Simon,

879 S.W.2d 349, 354 (Tex. App.—Houston [14th Dist.] 1994, writ denied), abrogated on other

grounds by In re Luster, 77 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding

that a trespass to try title suit was a collateral attack because “[i]n order to have a chance to succeed

in their trespass to try title action, appellants must prove that the divorce decree is invalid”). The

2023 case concluded with a final judgment of dismissal with prejudice against the Brownings.

Montoya Frazier v. Maxwell, No. 02-23-00103-CV, 2025 WL 494699, at *27 (Tex. App.—Fort

Worth Feb. 13, 2025, pet. filed) (“a TCPA dismissal is a merits judgment and carries res judicata

implications”); Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Services, Inc., 500

S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (same). The Brownings appealed

that decision but voluntarily dismissed it. Browning Family Mineral P’ship, 2024 WL 525403, at

*1; Tex. R. App. P. 42.1.

In summary, the Brownings 2023 suit was a collateral attack on the trust litigation

judgments. Because the Brownings had previously challenged the trust litigation judgments, their

later-filed bill of review was barred by res judicata. We overrule the Brownings fourth issue and

sixth issue as it pertains to the summary judgment. We affirm the trial court’s summary judgment

on the ground that the Owens conclusively proved their affirmative defense.

IV. CONCLUSION

In light of our disposition, we do not address the Brownings’ first through third issues

regarding service of citation in the trust litigation and the construction of Frank’s will.

We reverse the orders dismissing the case under Rule 91a and the Texas Citizens

Participation Act and render judgments denying those motions. However, we affirm the trial court’s

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summary judgment. Because that judgment finally disposes of all the Brownings’ claims, we do

not remand to the trial court for further proceedings.

MARIA SALAS MENDOZA, Chief Justice

October 21, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

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