law-collateral-attack-on-prior-judgment vs direct attack on judgment

law-collateral-attack-on-prior-judgment vs direct attack on judgment | res judicata | collateral estoppel | laches |
postjudgment motions | motion for new trial | bill of review | restricted appeal |

"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.

Davis v. West (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity) (turnover relief,
void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment hearing)
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

Baqdounes v. Nazir (Tex.App.- Houston [1st Dist.] Jan. 29, 2009)(Hanks)(informal marriage, common law
marriage, collateral attack on prior divorce decree that omitted SAPCR re child of the marriage, but of another
man, void vs. voidable judgment)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Jennings, Hanks and Bland
01-07-01102-CV Selene Lara Mateos Baqdounes v. Nazir Baqdounes
Appeal from 246th District Court of Harris County
Trial Court Judge: Hon. Jim York

Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Taft)(opinion on rehearing)
Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex.App.- Houston [1st Dist.] 2006, pet. filed)
[family law, divorce, retirement funds, QDRO, benefits, COLA, plenary jurisdiction, collateral attack]
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Taft
Before Justices Taft, Keyes and Hanks
01-04-00427-CV Brenda Joyce Gainous v. Thomas Earl Gainous
Appeal from 246th District Court of Harris County
Concurring Opinion by Justice Keyes
Concurring Opinion by Justice Hanks

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