Hustead on Behalf of Adkins v. Ashland Oil, Inc
In Hustead on Behalf of Adkins v. Ashland Oil, Inc., 197 W.Va. 55, 475 S.E.2d 55 (1996), the guardian ad litem of infant plaintiffs in an air pollution lawsuit brought a declaratory judgment action to have a court-approved settlement agreement invalidated.
The final order approving the settlement in the previous action had been entered ten months earlier and the guardian admittedly chose not to file a direct appeal from the circuit court's final order.
Having determined that the guardian was attempting to use the declaratory judgment action as a substitute for a direct appeal, the Court stated:
There is, however, no law in West Virginia that permits a declaratory judgment action to be used as a collateral attack on a final civil judgment.
Moreover, we agree with other jurisdictions that have expressly ruled that "absent special circumstances, an action for a declaratory judgment cannot be used as a substitute for a timely appeal...." School Committee v. Commissioner of Education, 395 Mass. 801, 482 N.E.2d 796 (Mass. 1985);
accord Alabama Public Serv. Comm'n v. AAA Motor Lines, Inc., 272 Ala. 362, 131 So. 2d 172, 177, cert. denied 368 U.S. 896 (1961) (stating that "declaratory judgment cannot be made a substitute for appeal");
see Hospital Underwriting Group, Inc. v. Summit Health Ltd., 63 F.3d 486, 495 (6th Cir.1995)(citing Shattuck v. Shattuck, 67 Ariz. 122, 192 P.2d 229, 235-36 (1948)) (stating that under Arizona law, "judgments are not set aside by collateral declaratory judgment actions");
Tri-State Generation and Transmission Co. v. City of Thornton, 647 P.2d 670, 676-77 n. 7 (Colo.1982) (stating that "a party may not seek to accomplish by a declaratory judgment what it can no longer accomplish directly....");
Fertitta v. Brown, 252 Md. 594, 251 A.2d 212, 215 (1969)(stating that "declaratory proceedings were not intended to and should not serve as a substitute for appellate review or as a belated appeal").
(Hustead, 197 W.Va. at 61, 475 S.E.2d at 61.)