Gary Webb and Webb Development Company v. Yorkshire West Capital, Inc.
05-16-00390-CV
Tex. App.Feb 21, 2017Background
- In 1994 Yorkshire obtained a joint-and-several judgment against Webb, Webb Development Co. (WDC), and Rodman for ~$2.96M plus fees/costs.
- On September 14, 2004 the Dallas District Clerk prepared a writ of execution; the Dallas County Sheriff’s return shows the writ “came to hand” on September 23, 2004 and returned no property found.
- A second writ was prepared in July 2013 but was not delivered to the sheriff for execution before Yorkshire filed for revival.
- Yorkshire filed an application for writ of scire facias on February 3, 2016 to revive the judgment, asserting the 2004 writ extended the judgment’s life until September 14, 2014 and the scire facias was filed within two years after dormancy.
- Webb and WDC objected, arguing (1) the 2004 writ was defective because it purportedly named only Webb in the caption and did not show service on all defendants, so the judgment became dormant in 2004; and (2) revival was untimely because two successive ten-year periods had expired by November 28, 2014.
- The trial court granted revival; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2004 writ of execution was properly "issued" so as to extend the judgment’s life | Yorkshire: the writ was dated Sept. 14, 2004, delivered to the sheriff Sept. 23, 2004, and on its face commanded execution against all three defendants jointly and severally | Webb/WDC: the writ caption named only Webb; return does not show service on all defendants, so issuance for all defendants was not proved | Held: The writ was properly issued — issuance requires timely clerical preparation and delivery to the officer; the writ named all defendants in the body and the sheriff’s receipt creates a presumption the officer performed duties. |
| Whether revival by scire facias in Feb. 2016 was untimely because two consecutive ten‑year periods expired by Nov. 28, 2014 | Yorkshire: even if judgment became dormant in Sept. 2014, section 31.006 allows revival by scire facias within two years of dormancy; Yorkshire filed within that two‑year window | Webb/WDC: argue revival limited to two consecutive ten‑year periods and therefore expired Nov. 28, 2014 | Held: Yorkshire’s scire facias was timely under §31.006 (filed within two years of dormancy); revival appropriate. |
Key Cases Cited
- Ross v. American Radiator & Standard Sanitary Corp., 507 S.W.2d 806 (Tex. Civ. App.—Dallas 1974, writ ref’d n.r.e.) (establishes issuance requires clerical preparation and delivery to officer; burden on creditor to prove issuance)
- Bartz v. Randall, 396 S.W.3d 647 (Tex. App.—Dallas 2013, no pet.) (presumption that officer performed duty once writ delivered; actual service not required to extend judgment life)
- Bourn v. Robinson, 107 S.W. 873 (Tex. Civ. App.—Texarkana 1908, no writ) (historical authority that "issue" of execution includes delivery to officer)
- Blankinship v. Brown, 399 S.W.3d 303 (Tex. App.—Dallas 2013, pet. denied) (court of appeals cannot consider documents not before trial court when it ruled)
