Opinion issued July 30, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00500-CV
ARTHUR P. HOLDINGS, LP, ARTHUR P. HOLDINGS, INC., PARADISE
LIVING, INC. D/B/A THE COTTAGE HEALTH CARE SERVICES,
LEGONITE, INC., JAMES ARTHUR, AND MARY ARTHUR, Appellants
V.
BLACKBURNE & BROWN MORTGAGE FUND I AND
BLACKBURNE & SONS REALTY CAPITAL CORPORATION, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2024-13806
MEMORANDUM OPINION
This suit arises from a mortgage debt and subsequent foreclosure. It is the
fifth in a series of lawsuits brought by the borrowers against the lender after the
parties had settled and an agreed final judgment was signed.1
Here, the borrowers sued the lender for breach of contract and declaratory
relief regarding the settlement agreement and agreed final judgment. The trial court
granted the lender’s Rule 91a motion to dismiss the borrowers’ claims.2 And the
borrowers appeal.
Because we conclude that the borrowers’ claims constitute an impermissible
collateral attack on the agreed final judgment, we affirm the trial court’s final
judgment.
1
See Arthur P. Holdings, L.P. v. Blackburne & Brown Mortgage Fund I, No. 01-25-00500-CV, 2025 WL 3083348 (Tex. App.—Houston [1st Dist.] Oct. 28, 2025, no
pet.) (mem. op.); Arthur v. Blackburne & Brown Mortgage Fund I, No. 14-21-00396-CV, 2023 WL 2711379 (Tex. App.—Houston [14th Dist.] Mar. 30, 2023, no
pet.) (mem. op.); Arthur v. Rayborn, No. 01-21-00072-CV, 2022 WL 17835228
(Tex. App.—Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op.); Paradise
Living, Inc. v. Blackburne & Brown Mortgage Fund I, No. 01-18-00194-CV, 2019
WL 2426168 (Tex. App.—Houston [1st Dist.] June 11, 2019, no pet.) (mem. op.);
Arthur Holding v. Blackburne & Brown, No. 01-17-00962-CV, 2018 WL 1003798
(Tex. App.—Houston [1st Dist.] Feb. 22, 2018, no pet.) (mem. op.) (appeal from
the agreed final judgment).
2
See TEX. R. CIV. P. 91a.
2
Background
In 2006, Arthur3 borrowed funds from Blackburne4 to purchase a 16-unit
condominium complex in southwest Houston, known as the Beechnut Property.
Arthur later defaulted on the loan.
In 2016, the parties settled. In their Settlement Agreement, Arthur agreed to
make scheduled payments to Blackburne, and the parties agreed to the terms of an
Agreed Final Judgment—to be filed in the event of a default. The Settlement
Agreement further provided for foreclosure and liquidated damages—the amount of
which was dependent on the timing of the default. As pertinent here, the provision
states:
The Agreed Final Judgment will order foreclosure of the Property on
the first available date. It will also contain an award of liquidated
damages to [Blackburne] for the post-foreclosure deficiency against
[Arthur] as follows: . . . The sum of $400,000.00, such sum due
immediately, in the event the Agreed Final Judgment is filed between
July 1, 2017 and July 26, 2018.
Arther again defaulted. Consequently, on July 27, 2017, Blackburne filed the
Agreed Final Judgment. And the trial court later signed the judgment.
3
Arthur P. Holdings, LP, Arthur P. Holdings, Inc., Paradise Living, Inc., doing
business as The Cottage Health Care Services, Legonite, Inc., James Arthur, and
Mary Arthur (collectively, Arthur).
4
Blackburne & Brown Mortgage Fund I and Blackburne & Sons Realty Capital
Corporation (collectively, Blackburne).
3
The Agreed Final Judgment orders the sale of the Beechnut Property and
states: “The amount of the sale shall not alter the schedule of liquidated amounts
below.” It further orders:
[I]n the event of foreclosure, pursuant to the Settlement Agreement of
the parties, that Blackburne have and recover jointly and severally from
[Arthur] the following liquidated amounts: . . . The sum of
$400,000.00, such sum due immediately, in the event the Agreed Final
Judgment is filed between July 1, 2017 and July 26, 2018.
In 2019, Blackburne foreclosed, and the Beechnut Property at a was sold at a
constable’s sale for $550,000.00. Blackburne then collected its liquidated damages
by seizing and selling other properties owned by Arthur.
Five years later, in 2024, Arthur filed the instant lawsuit. Arthur argued that
Blackburne breached the Settlement Agreement and Agreed Final Judgment by
collecting liquidated damages. According to Arthur, the 2019 constable’s sale of the
Beechnut Property did not result in a deficiency. Arthur sought a judgment declaring
that (1) its liability for liquidated damages was contingent upon there being a
deficiency and (2) the liquidated damages provision constituted an unenforceable
penalty.
Blackburne filed a Rule 91a motion to dismiss Arthur’s suit, arguing in part
that it constitutes an impermissible collateral attack on the Agreed Final Judgment.
After a hearing, the trial court granted Blackburne’s motion and dismissed Arthur’s
suit. Arthur appeals.
4
Motion to Dismiss
Arthur argues that the trial court erred in granting the Rule 91a motion and
dismissing its claims because its petition states viable claims for breach of contract
and declaratory relief.
A. Standard of Review
Rule 91a provides a mechanism for the early dismissal of a cause of action
that has no basis in law or fact. See TEX. R. CIV. P. 91a.1; McLane Champions, LLC
v. Houston Baseball Partners LLC, 671 S.W.3d 907, 918 (Tex. 2023).
“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.” TEX. R. CIV. P. 91a.1. This may occur if the petition: (1) alleges too few
facts to demonstrate a viable, legally cognizable claim to relief or (2) alleges facts
that, if true, bar the plaintiff’s recovery. Stallworth v. Ayers, 510 S.W.3d 187, 190
(Tex. App.—Houston [1st Dist.] 2016, no pet.). “A cause of action has no basis in
fact if no reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1.
Whether a defendant is entitled to dismissal under Rule 91a is a legal question
that we review de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex.
2016). “Dismissal is appropriate if the plaintiffs’ pleading of the cause of action
fails to state a legally cognizable claim, conclusively establishes an affirmative
defense, or otherwise shows the plaintiffs are not entitled to the relief sought.”
5
Carden v. Minton, Bassett, Flores & Carsey, P.C., No. 24-0834, 2026 WL 1851869,
at *4 (Tex. June 26, 2026).
Rule 91a allows dismissal based on an affirmative defense “if the allegations,
taken as true, together with inferences reasonably drawn from them, do not entitle
the claimant to the relief sought.” Bethel v. Quilling, Selander, Lownds, Winslett &
Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020) (quoting TEX. R. CIV. P. 91a.1).
“Rule 91a limits a court’s factual inquiry to the plaintiff’s pleadings but does not so
limit the court’s legal inquiry.” Id. “In deciding a Rule 91a motion, a court may
consider the defendant[s’] pleadings if doing so is necessary to make the legal
determination of whether an affirmative defense is properly before the court.” Id.
And the rule contemplates that a court may consider the substance of the motion and
arguments at the hearing. Id. at 655.
In our review, we construe the pleadings liberally in favor of the plaintiff, look
to the plaintiff’s intent, and accept as true the factual allegations in the pleadings.
Stallworth, 510 S.W.3d at 190. We “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 Rule 59.”5 TEX. R. CIV. P.
91a.6.
5
Texas Rule of Civil Procedure 59 provides:
[M]ortgages, records, and all other written instruments, constituting,
in whole or in part, the claim sued on, or the matter set up in defense,
6
B. Analysis
Based on these principles, we must determine whether Arthur’s live pleading
alleges a viable, legally cognizable claim against Blackburne or establishes a legal
bar to the requested relief. Arthur attached a copy of the Settlement Agreement and
Agreed Final Judgment to its petition, which we include in our review. See id.
Blackburne moved to dismiss Arthur’s claims on several grounds, including
that they all essentially constitute an impermissible attempt to collaterally attack the
2017 Agreed Final Judgment. We agree with Blackburne.
Collateral attack
Generally, a judgment may be attacked directly or collaterally. See PNS
Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). “A direct attack—such as
an appeal, a motion for new trial, or a bill of review—attempts to correct, amend,
modify or vacate a judgment and must be brought within a definite time period after
the judgment’s rendition.” Id. “After the time to bring a direct attack has expired, a
litigant may only attack a judgment collaterally.” Id. at 272.
may be made a part of the pleadings by copies thereof . . . being
attached or filed and referred to as such, or by copying the same in the
body of the pleading in aid and explanation of the allegations in the
petition or answer made in reference to said instruments and shall be
deemed a part thereof for all purposes. Such pleadings shall not be
deemed defective because of the lack of any allegations which can be
supplied from said exhibit. No other instrument of writing shall be
made an exhibit in the pleading.
TEX. R. CIV. P. 59.
7
A collateral attack “seeks to avoid the binding effect of a judgment in order to
obtain specific relief that the judgment currently impedes.” Id. But “[c]ollateral
attacks on final judgments are generally disallowed because it is the policy of the
law to give finality to the judgments of the courts.” Browning v. Prostok, 165 S.W.3d
336, 345 (Tex. 2005). While a collateral attack may be brought at any time, only a
void judgment can be collaterally attacked. PNS Stores, 379 S.W.3d at 271–72.
“A judgment is void only when it is apparent that the court rendering judgment
had no jurisdiction of the parties or property, no jurisdiction of the subject matter,
no jurisdiction to enter the particular judgment, or no capacity to act.” Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (internal quotations omitted). “All
errors other than jurisdictional deficiencies render the judgment merely voidable,
and such errors must be corrected on direct attack.” Browning v. Placke, 698 S.W.2d
362, 363 (Tex. 1985)
Here, the Agreed Final Judgment attached to Arthur’s live petition states that,
“in the event of foreclosure,” Blackburne will “have and recover jointly and
severally from [Arthur],” the “sum of $400,000.00, such sum due immediately, in
the event the Agreed Final Judgment is filed between July 1, 2017 and July 26,
2018.” It further provides that an order of sale shall issue, and “[t]he amount of the
sale shall not alter the schedule of liquidated amounts.”
8
The Agreed Final Judgment reflects that it was filed on July 27, 2017.
Arthur’s petition states that Blackburne foreclosed on the Beechnut Property, and it
was sold through a constable’s sale on November 5, 2019. Thus, as the parties
agreed, Blackburne was entitled to collect the sum of $400,000.00 in liquidated
damages from Arthur, which was “due immediately.”
But Arthur now argues, in this suit filed in 2024, that it does not owe
liquidated damages because the 2019 constable’s sale of the Beechnut Property did
not result in a deficiency—notwithstanding that the Agreed Final Judgment
expressly makes the amount recovered at the sale irrelevant. Arthur’s petition seeks
a judgment declaring that the “liquidated damage provisions of the Contract
[Settlement Agreement and Agreed Final Judgment] apply only in the event of a
deficiency” after the foreclosure sale, and it seeks a declaration that the liquidated
damages provisions “constitute a penalty not enforceable by law or contract.”
Arthur further alleges that Blackburne’s collection of liquidated damages constitutes
a breach of the Settlement Agreement and Agreed Final Judgment.
The time to bring a direct attack on the 2017 Agreed Final Judgment has
expired.6 See PNS Stores, 379 S.W.3d at 271–72 (direct attack—such as appeal,
6
Arthur appealed, despite language in the Agreed Final Judgment that it was “not
appealable.” But Arthur’s appeal was not timely filed as required by the Texas
Rules of Appellate Procedure, and the appeal was dismissed for lack of jurisdiction.
See Arthur Holding, 2018 WL 1003798, at *2.
9
motion for new trial, or bill of review—“attempts to correct, amend, modify or
vacate a judgment and must be brought within a definite time period after the
judgment’s rendition”). Thus, Arthur “may only attack [the] judgment collaterally.”
See id. at 272.
Arthur seeks to avoid the “binding effect” of the Agreed Final Judgment. See
id. But Arthur does not argue that it is void. See id. at 271–72 (only a void judgment
can be collaterally attacked); Travelers Ins., 315 S.W.3d at 863. Thus, Arthur’s suit
constitutes an impermissible collateral attack on the Agreed Final Judgment.
To the extent Arthur argues that the liquidated damages provision constitutes
an unenforceable penalty, this is a substantive contractual defense that Arthur needed
to raise in the trial court during the original lawsuit in which the 2017 Agreed Final
Judgment was signed. See SP Terrace, L.P. v. Meritage Homes of Tex., LLC, 334
S.W.3d 275, 287 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“An assertion that
a liquidated damages provision constitutes an unenforceable penalty is an
affirmative defense, and the party asserting penalty bears the burden of proof.”).
And Arthur does not assert that the trial court’s jurisdiction is implicated.7 See
Travelers Ins., 315 S.W.3d at 863.
7
Nor is the defense clearly established on the face of the pleadings. See Phillips v.
Phillips, 820 S.W.2d 785, 788–90 (Tex. 1991).
10
Further, this Court and others have held that a “declaratory judgment action
may not be used to collaterally attack, modify, or interpret a prior judgment.” Gunal
v. Block, No. 01-23-00838-CV, 2025 WL 3210085, at *3 (Tex. App.—Houston [1st
Dist.] Nov. 18, 2025, no pet.) (mem. op.); see Martin v. Dosohs I, Ltd., 2 S.W.3d
350, 353–54 (Tex. App.—San Antonio 1999, pet. denied) (“[T]he use of a
declaratory judgment suit to interpret a judgment of the same or another court is an
impermissible collateral attack on the previous judgment.”).
Because Arthur’s claim for declaratory relief is barred as an impermissible
collateral attack, its assertion that Blackburne breached the Agreed Final Judgment
by collecting liquidated damages—which is premised on its declaratory claim—is
likewise barred as a matter of law.
To the extent Arthur claims a separate breach of the Settlement Agreement
based on the statement therein that the Agreed Final Judgment “will . . . contain an
award of liquidated damages . . . for the post-foreclosure deficiency,” this
anticipatory language was modified, and therefore subsumed, in the Agreed Final
Judgment—which states that “[t]he amount of the sale shall not alter the schedule of
liquidated amounts.” (Emphasis added.) And Arthur approved the Agreed Final
Judgment as to both form and substance. Thus, Arthur waived any claim, except for
jurisdictional error (which it does not assert), that its terms varied from the prior
Settlement Agreement. See Mailhot v. Mailhot, 124 S.W.3d 775, 777–78 (Tex.
11
App.—Houston [1st Dist.] 2003, no pet.) (party “waived the right to complain of the
judgment that he asked the trial court to enter” and “has not preserved error to
complain of the judgment, which he ‘approved as to both form and substance’”).8
We therefore conclude that Arthur’s suit constitutes an impermissible
collateral attack on the Agreed Final Judgment. Thus, Blackburne established that
Arthur’s claims lack a basis in law. See TEX. R. CIV. P. 91a.1; Bethel, 595 S.W.3d at
656. Accordingly, we hold that the trial court did not err in granting Blackburne’s
Rule 91a motion to dismiss Arthur’s claims.
Findings of Fact and Conclusions of Law
Arthur also asserts that the trial court erred in failing to file findings of fact
and conclusions of law.
Texas Rule of Civil Procedure 296 provides: “In any case tried in the district
or county court without a jury, any party may request the court to state in writing its
findings of fact and conclusions of law.” See TEX. R. CIV. P. 296 (emphasis added).
After proper and timely request, the trial court is required to issue findings of fact
and conclusions of law within twenty days. See TEX. R. CIV. P. 297. But Rule 297
8
See Boufaissal v. Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no
pet.) (consent to entry of judgment “waives any error, except for jurisdictional error,
contained in the judgment, and that party has nothing to properly present for
appellate review”); Sivley v. Sivley, 972 S.W.2d 850, 857–59 (Tex. App.—Tyler
1998, no pet.) (agreed judgment, entered without objection, that varied from terms
of Rule 11 agreement superseded Rule 11 agreement).
12
does not impose a duty to file findings and conclusions where there has been no trial.
Carpenter v. Alijanipour, No. 01-24-00307-CV, 2025 WL 1460702, at *4 (Tex.
App.—Houston [1st Dist.] May 22, 2025, pet. denied) (mem. op.).
When ruling on a Rule 91a motion to dismiss, a court does not consider
evidence but rather must determine whether, accepting all facts alleged by the
plaintiff as true, recovery by the plaintiff is foreclosed as a matter of law. See TEX.
R. CIV. P. 91a.6; Bethel, 595 S.W.3d at 656; Stallworth, 510 S.W.3d at 190.
Accordingly, findings of fact and conclusions of law are neither required nor
appropriate. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443
(Tex. 1997).
Here, the trial court dismissed Arthur’s case without a trial and without an
evidentiary hearing. Consequently, the trial court was not required to issue findings
of fact or conclusions of law. Therefore, we hold that it did not err in denying
Arthur’s request. See Awde v. Dabeit, 938 S.W.2d 31, 33 (Tex. 1997).
Conclusion
We affirm the trial court’s final judgment in all things.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Gunn and Johnson.
13