Trad, Roberto, Hasbun, Nazry and Hasbun, Miguel S. v. Colonial Coins, Inc. and Dr. George W. Vogt--Appeal from 55th District Court of Harris County

Reversed and Rendered and Opinion filed January 16, 2003

Reversed and Rendered and Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00172-CV

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ROBERTO TRAD, NAZRY HASBUN, and MIGUEL S. HASBUN, Appellants

V.

COLONIAL COINS, INC. and DR. GEORGE W. VOGT, Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 89-03027

M E M O R A N D U M O P I N I O N

Appellants, Roberto Trad, Nazry Hasbun, and Miguel Hasbun, bring this appeal. The trial court denied appellants= petition for scire facias to revive a dormant judgment. We conclude the trial court erred in denying this motion, and reverse the trial court=s judgment. We grant appellants= petition for scire facias, and revive appellants= dormant judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 3, 1989, appellants recovered judgment against appellees for $264,621.22. On June 23, 1989, appellants filed and entered a writ of execution to collect on their judgment; they collected $20,000. On October 25, 1989, appellants attempted to issue a second writ of execution called an alias writ of execution. According to the record, Bill Bailey, a Harris County Constable, received the alias writ of execution on November 10, 1989. On January 2, 1990, Bailey attempted to issue the writ, but returned the writ nulla bona. He stated the following: [r]eturn to court nulla bona per instruction of plaintiffs attorney who states that defendant is claiming property levied on by the constable=s office is his homestead.

More than ten years later, on October 17, 2001, the appellants attempted to revive the judgment by filing a petition for scire facias. The trial judge denied appellants= petition for scire facias and denied appellants= motion to present testimony because the court found appellants filed both motions outside the time period established by law. Appellants brought this appeal.

DISCUSSION

Appellants raise three points of error. Combined in their first two issues, appellants contend the trial court erred when it denied the petition for scire facias because appellants timely filed the alias writ of execution. Because we find the trial court should have granted appellant=s petition for scire facias, we do not address appellants= final issue that the trial court erred by not granting a hearing regarding their motion.

In Texas, a judgment can become forever dormant if the party attempting to enforce the judgment fails to take the proper steps. The Texas Civil Practice and Remedies Code provides the following:

(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 time within 10 years after issuance of the first writ.

Tex. Civ. Prac. & Rem. Code Ann. ' 34.001. Here, the original judgment was rendered on April 3, 1989. Appellants issued a writ of execution within 10 years of the original judgment on June 23, 1989. The appellants attempted to issue an alias writ of execution on October 25, 1989. If appellants= attempt was proper, the original judgment would not become dormant until October 25, 1999. If it was improper, the dormancy would occur on June 23, 1999.

After a judgment becomes dormant, it may be revived by scire facias ... not later than the second anniversary of the date that the judgment becomes dormant. Tex. Civ. Prac. & Rem. Code Ann. ' 31.006. This means if appellants properly issued the writ, they had until October 25, 2001 to revive the dormant judgment by scire facias. If appellants improperly issued the writ, they had until June 23, 2001 to revive the dormant judgment. The appellants filed their petition for scire facias on October 17, 2001. Therefore, it is decisive to this case whether appellants properly issued the alias writ of execution.

Proper issuance of the alias writ of execution involves two factors. Williams v. Short, 730 S.W.2d 98, 99 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.). First, a clerical preparation of the writ must occur. Second, the writ must be unconditionally delivered to an officer for enforcement in the manner provided by law. Id.; see also Harrison v. Orr, 296 S.W. 871, 875 (Tex. 1927). When the officer receives the writ unconditionally, a presumption arises that the officer performed his duty and executed the writ. Carpenter v. Probst, 247 S.W.2d 460, 461 (Tex. Civ. App.CSan Antonio 1952, writ ref=d). If there is no showing Athat the officer was in any way thwarted or deterred from performing his duty@ issuance is presumed complete. Id. However, if a plaintiff at the time of delivery requests the officer not to enforce the writ, issuance is not complete. R.B. Spencer & Co. v. Harris, 171 S.W.2d 393, 394 (Tex. Civ. App.CAmarillo 1943, writ ref=d) (emphasis added).

Here, appellants met the requirements for scire facias. Appellants had the alias writ of execution prepared on October 25, 1989. Appellants unconditionally delivered the writ to Bailey on November 10, 1989. At the time of delivery, appellants instructed Bailey to issue the writ. Almost two months later, after appellants= attorney learned the property was protected by a homestead exemption, appellants= attorney requested the writ to be returned nulla bona. Appellants= attorney did not instruct Bailey to return the writ nulla bona when he first delivered it to the officer. Therefore, we find appellants properly issued the alias writ of execution, and appellants had until October 25, 2001 to file for scire facias. They filed within the deadline, and their judgment should be revived.

Therefore, we reverse the trial court=s judgment and grant appellants= petition for scire facias, reviving the dormant judgment.

/s/ Paul C. Murphy

Senior Chief Justice

Judgment rendered and Opinion filed January 16, 2003.

Panel consists of Chief Justice Brister, Justices Hudson and Murphy.[1]

[1] Senior Chief Justice Paul C. Murphy participating by assignment.