NUMBER 13-13-00595-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHARON STEDMAN, INDIVIDUALLY
AND AS EXECUTOR OF THE ESTATE OF
BETTY VALLNER, DECEASED, Appellants,
v.
STEVEN DE PAZ, Appellee.
On appeal from the 53rd District Court
of Travis County, Texas.
OPINION
Before Justices Benavides, Perkes, and Longoria
Opinion by Justice Benavides
By four issues, which we treat as one, appellant Sharon Stedman, individually and
as executor of the estate of Betty Valner (hereinafter “Stedman”) appeals the trial court’s
dismissal of her “Application to Revive Judgment by Scire Facias” against appellee
Steven De Paz pursuant to Rule 91a of the Texas Rules of Civil Procedure. See TEX.
R. APP. P. 91a. For the reasons stated below, we reverse and remand.
I. BACKGROUND1
On April 22, 2013, Stedman filed an “Application to Revive Judgment by Scire
Facias.”2 See TEX. CIV. PRAC. & REM. CODE ANN. § 31.006 (West, Westlaw through Ch.
46, 2015 R.S.) (Revival of Judgment). In her application, Stedman alleged the following
facts: (1) On September 6, 2000, Stedman obtained a default judgment for actual
damages in the amount of $250,000.00 against De Paz; (2) two writs of execution were
issued on the judgment, the second and final of which was issued on April 30, 2001; (3)
the writ was duly delivered to and returned by the Sheriff with the notation “Nula Bona”
[sic];3 (4) no other writ was issued before the expiration of ten years from April 30, 2001;
and (5) the application to revive judgment by scire facias was filed before April 30, 2013,
the second anniversary of the date the judgment became dormant. See id.
On May 20, 2013, De Paz filed a motion to dismiss pursuant to Rule 91a of the
Texas Rules of Civil Procedure. In his motion, De Paz alleged that subsequent to
receiving a final judgment in 2000, Stedman assigned “all of her right, title and interest in
and to the judgment to one Sharon Burnham who, in turn, assigned all of her right, title
and interest to one Norris DeVoll.” De Paz further alleged that DeVoll attempted to
1 This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
Ch. 46, 2015 R.S.).
2“Scire facias” is a writ requiring the person against whom it is issued to appear and show cause
why a dormant judgment against that person should not be revived. BLACK’S LAW DICTIONARY (10th ed.
2014).
3“Nulla bona” is a form of return by a sheriff or constable upon an execution when the judgment
debtor has no seizable property within the jurisdiction. Id.
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revive the judgment against De Paz but “failed.” De Paz asserted that the case was on
appeal before the Third Court of Appeals in Austin, with a pending motion to dismiss filed
by DeVoll. De Paz contended in his motion that if the case was that DeVoll assigned
the judgment to Stedman, “then Stedman steps into the shoes of DeVoll,” whose case
was pending on appeal; but, if DeVoll has not assigned the judgment, then Stedman has
no standing and the trial court was without jurisdiction to hear her application to revive the
judgment. In addition to asking for dismissal because Stedman’s application was
without basis in law or fact, De Paz also sought reasonable and necessary attorney’s
fees.
On July 1, 2013, the trial court dismissed Stedman’s application to revive judgment
by scire facias and ordered her to pay De Paz’s reasonable and necessary attorney’s
fees of $1,500.00. This appeal followed.
II. RULE 91A MOTION TO DISMISS
Stedman’s four issues on appeal turn on one controlling question: did the trial
court err in granting De Paz’s motion to dismiss under Rule 91a?
A. Standard of Review
A trial court’s determinations of whether a cause of action has any basis in law and
in fact are legal questions that we review de novo, based on the allegations of the live
petition and any attachments thereto. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). As a result, Rule 91a motions to dismiss
are analogous to pleas to the jurisdiction. Id.
In our review, we construe the pleadings liberally in favor of the plaintiff, look to the
pleader’s intent, and accept as true the factual allegations in the pleadings to determine
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if the cause of action has a basis in law or fact. Id.; see TEX. R. CIV. P. 91a.1 (“A cause
of action has no basis in law if the allegations, taken as true, together with inferences
reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of
action has no basis in fact if no reasonable person could believe the facts pleaded.”). In
making its determination, the trial court may not consider evidence in ruling on the motion
and must decide the motion based solely on the pleading of the cause of action, together
with any pleading exhibits permitted by the rules of civil procedure. Dailey v. Thorpe,
445 S.W.3d 785, 788 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing TEX. R. CIV.
P. 91a.6). When a nonmovant is faced with a motion to dismiss under Rule 91a, the
nonmovant has the option to: (1) nonsuit, (2) amend her challenged causes of action
prior to the hearing on the motion, or (3) file a response and rely on her live pleading. If
the non-movant, as in this case, responds and relies on her live pleading, we apply the
fair notice pleading standard applicable in Texas to determine whether the allegations of
the petition are sufficient to allege a cause of action. Wooley, 447 S.W.3d at 76 (citing
Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (“A petition is sufficient if it gives fair
and adequate notice of the facts upon which the pleader bases his claim.”)).
B. Discussion
Stedman’s pleading before the trial court at the time of the dismissal was an
application to revive a dormant judgment by scire facias. Thus, we first examine the
relevant law on reviving dormant judgments through this method.
If a writ of execution is not issued within ten years after the rendition of a judgment
of a court of record, the judgment is dormant and execution may not be issued on the
judgment unless it is revived. TEX. CIV. PRAC. & REM. CODE ANN. § 34.001(a) (West,
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Westlaw through Ch. 46, 2015 R.S.). A dormant judgment may be revived by scire
facias brought not later than the second anniversary of the date that the judgment
becomes dormant. Id. § 31.006. The effect of section 31.006 is to provide a twelve-
year residual limitations period of final judgments. See Burnett-Dunham v. Spurgin, 245
S.W.3d 14, 17 (Tex. App.—Dallas 2007, pet. denied).
In determining whether to issue a writ of scire facias reviving a judgment, the trial
court shall consider the date of the underlying judgment, evidence of any writs of
execution issued on the judgment, and the date of the motion to revive the judgment scire
facias. Calde 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.); Thomas v. Ponnen, No. 05-00-
01233-CV, 2001 WL 755638, at *2 (Tex. App.—Dallas Jul. 6, 2001, no pet.) (mem. op.
not designated for publication). 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. A scire facias proceeding is a non-evidentiary hearing for
which there is no need for findings of fact and conclusions of law. Rollins, 2010 WL
670561, at *2.
Here, Stedman alleged in her application to revive judgment by scire facias that:
(1) a judgment was rendered against De Paz on September 5, 2000; (2) two unsuccessful
writs of execution had been issued on the 2000 judgment, the last writ having been issued
April 30, 2001; (3) no other writ was issued before the expiration of ten years from April
30, 2001; (4) the judgment became dormant on April 30, 2011; and (5) the present
application was filed prior to April 30, 2013, the second anniversary of the date the
judgment became dormant. Construing Stedman’s application liberally, looking at its
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intent, and accepting the factual allegations as true, we hold that Stedman provided fair
notice to De Paz that she sought to revive her 2000 dormant judgment against him,
pursuant to section 31.006 of the civil practice and remedies code. See Rollins, 2010
WL 670561, at *2; see also Wooley, 447 S.W.3d at 76. De Paz’s factual assertions in
his Rule 91a motion to dismiss regarding Stedman’s assignment of rights to collect the
2000 judgment are irrelevant in our analysis at this stage of the proceedings because our
review requires us to accept Stedman’s factual allegations as true.4 See Wooley, 447
S.W.3d at 76. Therefore, because Stedman’s application to revive judgment by scire
facias has a basis in law and fact, it survives dismissal under a Rule 91a motion to
dismiss. The trial court erred in ordering her cause of action dismissed and ordering
attorney’s fees in the amount of $1,500.00. Stedman’s sole issue on appeal is
sustained.
III. CONCLUSION
We reverse the trial court’s order of dismissal and order of attorney’s fees and
remand this case for further proceedings consistent with this opinion.
GINA M. BENAVIDES,
Justice
Delivered and filed the
2nd day of September, 2015.
4 However, nothing in our holding today prevents De Paz from fully developing and using these
factual assertions later in his defense throughout the remainder of these proceedings.
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