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Gary Webb and Webb Development Co. v. Yorkshire West Capital, Inc.

Court of Appeals of Texas, Fifth District, Dallas

February 21, 2017

GARY WEBB AND WEBB DEVELOPMENT COMPANY, Appellants
v.
YORKSHIRE WEST CAPITAL, INC., Appellee

         On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-94-03613

          Before Justices Evans, Stoddart, and Boatright

          MEMORANDUM OPINION

          JASON E. BOATRIGHT JUSTICE.

         The trial court granted appellee Yorkshire West Capital, Inc.'s application for writ of scire facias and signed an order reviving a 1994 judgment against appellants Gary Webb and Webb Development Company. In two issues, appellants contend the trial court erred because (1) the time for reviving the judgment had expired; and (2) a previous writ of execution was defective. We conclude that appellee's application was timely and the previous writ of execution was issued in accordance with statute. Accordingly, we affirm the trial court's order.

         Background

         In 1994, Yorkshire West Capital, Inc. ("Yorkshire") filed suit against Webb Development Company ("WDC") and Gary Webb on a promissory note and guaranty. A third defendant, George Rodman, is not a party to this appeal. Webb and WDC appeared, answered, and filed a counterclaim. On November 28, 1994, the trial court rendered judgment for Yorkshire against the defendants jointly and severally for $2, 959, 868.02, plus attorney's fees, interest, and costs. The trial court also ordered that Webb and WDC take nothing on their counterclaim.

         On September 14, 2004, less than ten years after the trial court rendered judgment, Yorkshire requested that the District Clerk of Dallas County issue a writ of execution. On September 23, 2004, a copy of the writ was delivered to the Dallas County Sheriff for execution. On July 29, 2013, a second writ of execution was issued by the District Clerk of Dallas County. The second writ, however, was not delivered to the Dallas County Sheriff for execution.[1]

         On February 3, 2016, Yorkshire filed an application for writ of scire facias, requesting revival of the 1994 judgment. Yorkshire asserted that the issuance of the 2004 writ of execution kept the judgment alive until September 14, 2014. Yorkshire contended that the judgment became dormant after that date, but could be revived by application for scire facias before the second anniversary of the date the judgment became dormant. Webb and WDC filed an objection and motion to quash the application, attaching an affidavit from Webb in which he testified that he had never been served with any writ of execution.[2] The trial court granted Yorkshire's application. This appeal followed.

         Applicable Law

         Under section 31.006 of the Texas Civil Practice and Remedies Code, "[a] dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant." Tex. Civ. Prac. & Rem. Code Ann. § 31.006 (West 2015) ("Revival of Judgment"). Chapter 34 of the Civil Practice and Remedies Code addresses execution on judgments. Section 34.001 provides, in relevant part:

No Execution on Dormant Judgment
(a) If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.
(b) If a writ of execution is issued within 10 years after rendition of a judgment but a second writ is not issued within 10 years after issuance of the first writ, the judgment becomes dormant. A second writ may be issued at any ...

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