Abbott v. Abbott

• Decision Date: 17 December 2013
• Docket Number: No. WD 76525.,WD 76525.
• Citation: 415 S.W.3d 770
• Parties: C. Thomas ABBOTT, III, Appellant, v. William K. ABBOTT, Respondent.
• Court: Missouri Court of Appeals

415 S.W.3d 770

C. Thomas ABBOTT, III, Appellant,
v.
William K. ABBOTT, Respondent.

No. WD 76525.

Missouri Court of Appeals,
Western District.

Dec. 17, 2013.

Ira M. Berkowitz, St. Louis, MO, for Appellant.

Steven Faber, Columbia, MO, for Respondent.

[415 S.W.3d 771]

Before Division Three: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and GARY D. WITT, Judges.

KAREN KING MITCHELL, Presiding Judge.

Appellant, C. Thomas Abbott, III, appeals the circuit court's denial of his motion to revive a judgment he previously obtained against Respondent, William K. Abbott, arguing essentially that the circuit court misapplied the law governing judgment revival motions. Because Appellant's motion to revive was filed within the ten-year period of limitation applicable to revival motions, the circuit court erred in denying Appellant's motion. We reverse and remand with instructions.

Factual and Procedural Background

Appellant and Respondent are brothers. A dispute arose between them, after their father's death, regarding the proceeds from the sale of real property. As a result of the dispute, Appellant filed an action for promissory estoppel against Respondent, wherein Appellant obtained a monetary judgment in the amount of $48,322.98. The judgment was rendered on April 2, 2003.

On April 2, 2013, Appellant filed a motion to revive the judgment, indicating that the judgment had not been satisfied. On April 18, 2013, the circuit court issued a show-cause order, directing Respondent to appear on May 6, 2013, “to show cause why such judgment should not be revived.” Respondent was served with the show-cause order on April 24, 2013.

At the show-cause hearing, Respondent argued that the court could not enter an order reviving the judgment because the ten-year period of limitation had already lapsed. Respondent conceded that Appellant's motion for revival was filed within the applicable time period, but argued that the revival itself had to be complete within ten years, and because more than ten years had elapsed at the time of the show-cause hearing, no order for revival could then be entered. The circuit court received suggestions from both parties on the legal issue raised. Then, on June 3, 2013, the circuit court entered an order overruling Appellant's motion for revival.¹ He now appeals.

Standard of Review

The only issue presented in this appeal is whether the circuit court properly applied the law governing motions to revive judgments. As this is a purely legal question, our review is de novo.²

[415 S.W.3d 772]

Andresen v. Bd. of Regents of Mo. W. State Coll., 58 S.W.3d 581, 585 (Mo.App.W.D.2001).

Analysis

Our task in this case is simply to determine what actions a party must take to revive a judgment and within what period of time those actions must be taken. Appellant argues that the only obligation placed upon a party seeking revival is to file a motion to revive the judgment within ten years of either the judgment's entry or the last revival. Respondent argues that a party seeking revival must not only file the motion within ten years but also have the other party served and ensure that the circuit court holds a show-cause hearing and issues its revival order within ten years. We agree with Appellant.

Appellant's argument is based upon the language of Rule 74.09,³ which provides:

(a) When and by Whom. A judgment may be revived by order of the court that entered it pursuant to a motion for revival filed by a judgment creditor within ten years after entry of the judgment or the last prior revival of the judgment.

(b) Order to Show Cause. Upon the filing of a motion of revival of a judgment, an order shall issue to the judgment debtor to show cause on a day certain why such judgment should not be revived. The order to show cause shall be served pursuant to Rule 54 on the judgment debtor, his successors in interest, or his legal representatives.

(c) Judgment of Revival. If the judgment debtor, his successors in interest, or legal representatives fail to appear and show cause why the judgment should not be revived, the court shall enter an order reviving the judgment.

The plain language of this rule requires that, within ten years, a party seeking revival need only file a motion to revive the judgment and nothing more. Thus, Rule 74.09 plainly supports Appellant's argument.

Respondent argues, however, that section 516.350.1 imposes more requirements upon a party seeking to revive a judgment. Section 516.350.1 provides, in pertinent part:

Every judgment, order or decree of any court of record ... of this or any other state ... shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or ... after ten years from ... revival[.]

Respondent argues that, because section 516.350.1 provides a presumption of payment after ten years, if a judgment is to be revived, the revival, itself, must be complete within ten years.⁴ Respondent's argument,

[415 S.W.3d 773]

however, has already been rejected by this Court in White Industries, Inc. v. New England Propeller Service, Inc., 881 S.W.2d 243 (Mo.App.W.D.1994).

In White Industries, a judgment creditor filed a motion to revive a prior judgment one month before the ten-year period elapsed from the date of the original...