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                              MEMORANDUM OPINION

                                      No. 04-09-00196-CV

 Stella Longoria BASQUEZ, Andile Carrillo, Jr., Elvira Longoria Carrillo, Helen Ann Carrillo,
Ray Carrillo, Rebecca Ann Carrillo, Rita Reyes Chavez, Dalia Guerrero Constancio, Starr Nicole
Longoria Cruz, Darla Longoria Galvan, Rachel Jane Carrillo Galvan, Amy Marie Longoria Glaze,
Audrey Longoria Guardiola, Tanya Longoria Guerrero, Adan Longoria, Adam Longoria, Jr., Alfred
Longoria, Benito Longoria, Benito Longoria, Jr., Benito Longoria III, Bobby Longoria, Daemon
Rene Longoria, David Longoria, III, Denese Rene Longoria, Dolores Denise Longoria Hernandez,
Emily Maria Longoria Perez, Francisco Cruz Longoria, Jr., Francisco Longoria, III, Hector Longoria,
Joe Frank Longoria, Juan Longoria, Louis Longoria, Natividad Longoria, Jr., Raquel Longoria,
Natividad Longoria, III, Ray Longoria, Rene Longoria, Reymundo Longoria, Jr., Rickey Longoria,
Robert Longoria, Rozann Longoria, Ruben Flores Longoria, Ryan Rendon Longoria, Santiago
Longoria, Sara Denise Longoria, Sylvester Longoria, Yolanda Longoria, Rebecca Lynn Zavala
Magana, Lupe Maria Longoria Martinez, Rhonda Reyes Martinez, Jennifer Ann Reyes Mendez,
Dora Maria Longoria Mondrik, Diana Guerrero Olvera, Margaret Longoria Ortiz, Anita Picon
Pacheco, Jeannette Marie Zavala Paniagua, Ernest Louis Reyes, Jr., Kayla Longoria Sanchez, Maria
Emma Longoria Reyes, Rosie Longoria Ruddick, Emma Reyes Segura, Cindy Jane Reyes Torres,
Felicia Anna Zavala Vega, Norma Linda Longoria Zavala, Crystal Longoria Zepeda,
                                          Appellants

                                                v.

                    THE UNKNOWN HEIRS OF PEDRO LONGORIA,
                                  Appellees

                       From the County Court at Law, Starr County, Texas
                                  Trial Court No. PR-08-007
                          Honorable Romero Molina, Judge Presiding

Opinion by:    Sandee Bryan Marion, Justice

Sitting:       Catherine Stone, Chief Justice
               Sandee Bryan Marion, Justice
               Rebecca Simmons, Justice
                                                                                       04-09-00196-CV




Delivered and Filed: March 3, 2010

REVERSED and REMANDED

       Appellants (“plaintiffs” below) filed suit in Starr County, Texas, against the unknown heirs

of Pedro Longoria (“defendants”) seeking a declaration that plaintiffs are descendants of Pedro

Longoria, a Spanish land grantee who died in 1772. The trial court granted the defendants’ motion

to dismiss based on their plea of res judicata. We reverse and remand.

                      FACTUAL AND PROCEDURAL BACKGROUND

       Pedro Longoria was the sole grantee and owner of Spanish Land Grant Porcion 94, located

in what is now Starr County. Longoria, along with many of his descendants, died intestate.

Plaintiffs claim to be descendants of Pedro Longoria and owners of part of his estate, and their third

amended petition sought (1) a declaration that they were his heirs and (2) a determination of each

of their interests in his estate. Defendants, through an attorney ad litem appointed by the court to

represent the unknown heirs, filed a motion to dismiss, special exceptions, and a plea of res judicata,

claiming a court in Hidalgo County, Texas, partitioned Porcion 94 in a 1945 case styled Esteban

Garcia v. W. H. Braden, et al. (“Garcia Judgment”). Therefore, according to defendants, plaintiffs’

cause of action amounted to a collateral attack on a final judgment. Although defendants requested

the trial court take judicial notice of the Garcia Judgment, defendants failed to attach a verified or

certified copy of the Garcia Judgment to their pleadings or otherwise file the Garcia Judgment with

the trial court. Regardless, in an order signed June 12, 2008, the trial court granted defendants’

“special exceptions” and allowed the plaintiffs an opportunity to amend their pleadings. After




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plaintiffs filed amended petitions and a motion to reconsider, the trial court ordered the case

dismissed based solely on defendants’ plea of res judicata. This appeal followed.1

                                                      DISCUSSION

         In their second issue on appeal, plaintiffs argue the trial court erred in granting defendants’

motion to dismiss because defendants did not establish their affirmative defense of res judicata. In

order to prevail on the affirmative defense of res judicata, a movant must prove each of the following

elements: (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 second action based on the same claims as were raised

or could have been raised in the first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d

78, 86 (Tex. 2008). In order to prove these elements, the movant must produce verified or certified

copies of the judgment and pleadings from the prior suit sufficient to establish the applicability of

res judicata as a matter of law. Brinkman v. Brinkman, 966 S.W.2d 780, 781 (Tex. App.—San

Antonio 1998, pet. denied); Jones v. Nightingale, 900 S.W.2d 87, 88-89 (Tex. App.—San Antonio

1995, writ ref’d).

         Here, defendants did not establish any of the elements of their affirmative defense.

Defendants did not, for instance, attach to their motion to dismiss verified or certified copies of the

Garcia Judgment or any other judgment or pleading that establishes the elements of the affirmative

defense as a matter of law. Simply asking the court to take judicial notice of a judgment or pleading

from a different court is not sufficient to establish the affirmative defense of res judicata. See

WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 459 (Tex. App.—Houston [14th


         1
             … It is unclear whether plaintiffs claim to be the heirs of Pedro Longoria (that is, heirs along side the heirs
presumably named in the Garcia Judgment) or the “heirs of the heirs of Pedro Longoria” as stated in their brief
before this court.

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Dist.] 2005, pet. denied) (court cannot take judicial notice of records of another court in another case

unless party provides proof of those records). Thus, defendants failed to meet their burden of proof,

and the trial court erred in granting their motion to dismiss based on res judicata.2

                                                   CONCLUSION

         We reverse the trial court’s order granting defendants’ motion to dismiss, and we remand the

cause to the trial court for further proceedings consistent with this opinion.3



                                                                  Sandee Bryan Marion, Justice




         2
          … Because we conclude defendants did not establish the elements of their affirmative defense, we do not
address plaintiffs’ complaint that defendants improperly used a motion to dismiss rather than a motion for summary
judgment. See T EX . R. A PP . P. 47.1.

         3
             … Because the trial court granted the motion to dismiss on the single ground of res judicata, we do not
address plaintiffs’ compliant that the trial court erred in determining they did not present a justiciable controversy.
See id.

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