What is a collateral attack

what is a collateral attack

law-collateral-attack-on-prior-judgment vs direct attack on judgment | res judicata | collateral estoppel | laches |

"A collateral attack on a judgment is an effort to avoid its binding force in a proceeding,

instituted not for the purpose of correcting, modifying, or vacating it, but in order to

obtain specific relief against which the judgment stands as a bar ." Boudreaux Civic Ass'n v.

Cox, 882 S.W.2d 543, 549 (Tex. App.--Houston [1st Dist.] 1994, no writ) (quoting Texaco, Inc. v. LeFevre, 610

S.W.2d 173, 176 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ)).

DIRECT VS. COLLATERAL ATTACK ON A JUDGMENT

CASE LAW FROM HOUSTON

A direct attack on a judgment seeks to amend, correct, reform, vacate, or enjoin the execution of the judgment

in a proceeding instituted for that purpose, such as a motion for a rehearing or an appeal. Crawford v.

McDonald, 88 Tex. 626, 630, 33 S.W. 325, 327 (1895). A collateral attack, in contrast, seeks to avoid the effect

of a judgment in a proceeding brought for some other purpose. Browning v. Prostock, 165 S.W.3d 336, 346

(Tex. 2005).

We conclude the district court suit is not a collateral attack because it does not seek to avoid the effect of the

county court judgment. The county court judgment determined that the Trust owned the property, and that

Maxie

Westbrook, Guinn, and their tenants or agents owed $48,000 in unpaid rent. The district court suit

focuses on a different dispute; appellees assert that Ryals improperly removed Maxie Westbrook and Guinn as

trustees of the Trust and thereby breached the Trust agreement, which requires a minimum of two managing

trustees. Appellees requested a temporary injunction to prevent Ryals from selling or otherwise conveying the

11747 Eastex Freeway property until the court could determine whether he is entitled to act as trustee. The

district court suit does not explicitly or implicitly challenge the county court's finding that the Trust owns the

property; it challenges only whether Ryals has authority to act on behalf of the Trust. The temporary injunction

enjoining sale or conveyance of the property merely maintains the status quo until the district court can

determine whether Ryals breached the trust agreement by removing Maxie Westbrook and Guinn as trustees.

AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks

Before Justices Keyes, Alcala and Hanks

01-08-01006-CV Veronica Davis v. James A. West, Henry V. Radoff,

Houston Reporting Services & Prosperity Bank, Inc.

Appeal from 149th District Court of Brazoria County

Trial Court Judge: Hon. Robert E. May

Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Taft)(opinion on rehearing)

REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:

Source: www.houston-opinions.com

Category: Credit

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