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Harris v. Balderas6/28/2000
Concurring and dissenting opinion by: Paul W. Green, Justice
REVERSED AND REMANDED
A car driven by Heather Harris collided with a car in which Consuelo Balderas was a passenger. Consuelo suffered severe brain damage as a result of the accident. See Harris v. Balderas, 949 S.W.2d 42, 44-45 (Tex. App.-San Antonio 1997, no writ). Consuelo's husband, Octavio, and her daughter, Marta, sustained less severe injuries. Consuelo, Octavio, and Marta filed suit against Harris. Harris filed a counterclaim, contending that Consuelo had agreed to release her from liability for the accident in exchange for $20,000. Harris's counterclaim was severed from Consuelo's personal injury suit. Harris admitted liability in the personal injury suit, and a jury trial on damages was held. The trial court rendered a judgment on the jury's verdict, awarding Consuelo $4,500,821.92, Octavio $337,561.64, and Marta $168,780.82. This court affirmed. See id. at 45. After the judgment was rendered in the personal injury suit, the parties continued to litigate the existence of the settlement agreement in the severed cause. Consuelo filed a counterclaim, seeking a declaration that there was no settlement agreement, and Harris's insurer, USAA Casualty Insurance Company, intervened on the side of Harris. On cross-motions for summary judgment, the trial court ruled that no settlement agreement existed as a matter of law. Harris and USAA appeal this judgment.
These appeals require us to decide whether the attempt to enforce the purported pre-suit settlement after the entry of judgment in the personal injury suit amounts to a collateral attack on the judgment. We conclude that it does not. We must also decide whether the summary judgment evidence raises a fact issue on the existence of a settlement agreement. We conclude that it does. In accordance with these decisions, we will reverse the summary judgment and remand the cause for trial.
Mootness
Consuelo initially contended that both Harris's and USAA's appeals are moot. She subsequently abandoned the contention that USAA's appeal is moot. Because the question of mootness relates to our jurisdiction, we will consider whether both appeals are moot. See Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993).
Harris and USAA are seeking a ruling that they and Consuelo entered into a settlement agreement before the personal injury suit was filed. Consuelo asserts that such a ruling could be used for only one purpose: to avoid paying the judgment in the personal injury suit. Consuelo argues that any attempt to avoid paying the personal injury judgment would be an impermissible collateral attack on that judgment. If the ruling sought by Harris and USAA cannot be used for any permissible purpose, this court's decision in these appeals cannot have any effect on the parties' rights, and the appeals would be moot. See VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (stating that a case is moot when the court's decision on the merits cannot affect the parties' rights).
We have defined "collateral attack" as "an attempt to impeach a judgment offered as evidence of some right," Jefferson Sav. & Loan Ass'n v. Adams, 802 S.W.2d 811, 814 (Tex. App.-San Antonio 1990, writ denied), and as "`an attempt to avoid [a judgment's] binding force in a proceeding not instituted for the purpose of correcting, modifying, or vacating it, but in order to obtain some specific relief against which the judgment stands as a bar'," Jones v. Jones, 900 S.W.2d 786, 787-88 (Tex. App.-San Antonio 1995, writ denied) (quoting Hogan v. City of Tyler, 602 S.W.2d 555, 558 (Tex. Civ. App.-Tyler 1980, writ ref
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