Mike Chen, Appellant v. Chinh Quoc Nguyen, Appellee

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Court of Appeals of Texas, Dallas.

Mike Chen, Appellant v. Chinh Quoc Nguyen, Appellee

No. 05–15–00077–CV

Decided: January 21, 2016

Before Justices Francis, Evans, and Stoddart

MEMORANDUM OPINION

Appellant Mike Chen appeals the trial court's denial of his petition for revival of judgment.  For the reasons stated below, we reverse and remand.

BACKGROUND

Appellant and two other plaintiffs filed a lawsuit against seven defendants including appellee.  Appellant obtained a judgment against appellee on September 26, 2002.  Appellant filed a petition for revival of judgment on August 12, 2014.  A hearing was held on November 21, 2014, but appellant failed to appear and the trial court denied appellant's petition to revive the judgment.  Appellant filed a motion for rehearing which the trial court denied.  Appellant then filed this appeal.

ANALYSIS

If a writ of execution is not issued within ten years after the rendition of judgment, the judgment is dormant and execution may not be issued on the judgment unless it is revived.  Tex. Civ. Prac. & Rem.Code § 34.001 (West 2016).  In this case, the judgment was rendered on September 26, 2002, and no writ of execution was issued within the ten-year period.  Accordingly, the judgment became dormant on September 26, 2012.  A dormant judgment may be revived by scire facias or by action of debt brought no later than the second anniversary of the date the judgment becomes dormant.  Tex. Civ. Prac. & Rem.Code § 31.006. Here, appellant filed a petition to revive judgment on August 12, 2014.  In determining whether to issue a writ of scire facias to revive a dormant judgment, a trial court considers the date of the judgment, evidence of any writs of execution issued on the judgment, and the date of the motion to revive the judgment.  Cadle Co. v. Rollins, No. 01–09–00165–CV, 2010 WL 670561, at *2 (Tex.App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op., not designated for publication).

We note that appellee argues that the trial court had discretion to deny plaintiff's petition for revival of judgment because appellant failed to (1) appear at the hearing and (2) prosecute the case with due diligence.  Appellee further argues that appellant was precluded from being granted revival of judgment because of the one satisfaction rule.  A scire facias proceeding, however, is a non-evidentiary hearing for which there is no need for findings of fact and conclusions of law.  Id. Thus, in deciding whether a judgment should be revived, the trial court is without discretion to revive a judgment if the statutory requirements to revive a judgment are satisfied.  Stedman v. Paz, No. 13–13–00595–CV, 2015 WL 5157598, at *2 (Tex.App.—Corpus Christi Sept. 2, 2015, no pet.).  As the statutory requirements have been met in this case, we reverse the order entered by the trial court and remand for further proceedings consistent with this opinion.

CONCLUSION

Appellant's sole issue on appeal is sustained and we reverse the order entered by the trial court and remand for further proceedings consistent with this opinion.

Opinion by Justice Evans