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National Bank of Washington v. Carr

August 07, 2003


Appeal from the Superior Court of the District of Columbia Civil Division (CA-9525-89) (Hon. Susan R. Winfield, Trial Judge)

Before Schwelb, Ruiz and Glickman, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Submitted November 12, 2002

On November 2, 1989, the National Bank of Washington ("National Bank") obtained a default judgment in the amount of $21,444.44, plus interest, costs, and attorney's fees, against appellees, George E. Carr and Carr and Company, Inc., on three overdue and unpaid promissory notes. On May 7, 1997, appellant, Bobby D. Associates, obtained an assignment of the National Bank judgment, assuming the position of judgment creditor. *fn1 On October 17, 2001, the judgment creditor filed a motion to revive the National Bank judgment against appellees, which was due to expire on November 2, 2001. See D.C. Code § 15-101 (2001). *fn2 Appellant filed a second motion to revive the judgment along with a "Motion to Shorten Time" on November 1, 2001. *fn3

By order filed November 9, 2001, the trial court denied the three motions as moot. The court noted that while the first motion for revival of the judgment, which was due to expire on November 2, 2001, was received in chambers on October 26, 2001, and the second motion to revive and motion for expedited action were filed on November 1, 2001, "the last possible day on which this court could act, . . . [t]hese three motions came to the attention of the [court] on [November 8, 2001], after the twelve-year revival period had elapsed." *fn4 The court interpreted D.C. Code § 15-103 as requiring that an order of revival be issued during the twelve-year period from the date of judgment or revival, and, finding itself without authority to act, dismissed the motions as moot. *fn5

We have held that the twelve-year period in D.C. Code § 15-101 is not jurisdictional in nature, but a statute of limitations that, as an affirmative defense, is waived if not tim ely asserted. See Mayo v. Mayo, 508 A.2d 114, 117 (D.C. 1986). Therefore, to the extent that the trial court appears to have thought it was without authority to act, it was incorrect as a matter of law. Nonetheless, appellees argue that if the court had not acted to deny the motions before they had an opportunity to respond to the motions to revive, they would have interposed the statute of limitations as a defense. Even if we assume that to be the case, we conclude that as a matter of law the limitations period had not expired, and the trial court should have considered the timely motions to revive the judgment.

In Michael v. Smith, 95 U.S. App. D .C. 186, 221 F.2d 59 (1955), the United States Court of Appeals for the District of Columbia Circuit considered the same question in light of the twelve-year provision of § 15-101 of the D.C. Code, which has rem ained virtually unchanged since its adoption and codification in the 1901 District of Columbia Code. See Mayo, 508 A.2d at 117 (tracing § 15-101 to chapter 23 of the 1715 Maryland Act). In Michael, the Court of Appeals considered the District Court's denial of the appellant's motion to revive judgment for a third twelve-year period where the District Court had found that because the order reviving the judgment for the second period was not entered within the initial twelve years allotted by statute, the life of the original judgment had expired before the second revival period was granted. *fn6 See Michael, 95 U.S. App. D.C. at 187, 221 F.2d at 60. In reversing the District Court's ruling, the Court of Appeals noted that it was not clear from the statute "that Congress intended court action essential to revival to be concluded within the period specified for the initiation of steps to that end." Id. at 188, 221 F.2d at 60. Recognizing that motions for revival may be contested, the court reasoned that

It is hardly sound to construe ambiguous statutory directions as requiring a judgment creditor to calculate with precision these time factors or else to suffer the loss of his judgment. If he allows a reasonable time the court ordinarily will be able to act within the 12 years, but how much to allow cannot be determined in advance with exactness.

Michael, 95 U.S. App. D.C. at 188, 221 F.2d at 61. Noting that "[p]reservation of rights is made to depend in many instances upon action within a definite time" and that "the one upon whom the initiative rests keeps his right alive for the time being if he makes the appropriate move within the specified time," the court held that, barring "circumstance out of the ordinary," if a motion is filed before the statutory deadline, the judgment remains valid even if the court order reviving the judgment was entered after the twelve-year anniversary of the original judgment. Id. To require that a motion to revive "be filed so early as to avoid the possibility of the expiration of 12 years before the court acts" would shorten "the intended statutory life of the judgment . . . because the renewal period begins from the court's o rder." Id. (citation omitted).

The court in Michael chose not to construe the precursor to § 15-103, *fn7 upon which the trial court relied in this case, as "a clear withdrawal of all life from the judgment while proceedings looking to its renewal are being pursued, even though their completion lags behind the flight of time across the 12 year line." Id. Nor can we, in light of precedent, give that provisio n its plain meaning. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) (holding that, when the words of a statute are clear, "the judicial inquiry is complete") (citation and internal quotations omitted). We think that the reasoning of Michael that places definitive significance on the filing of a motion to revive judgment is consistent with our holding in Mayo that the twelve-year period in the statute does not implicate the court's authority to revive a judgment, but is a statute of limitations that governs the assertion of a right.

Appellant in this case timely filed on October 17, 2001, a motion to revive a judgment rendered on November 2, 1989, sixteen calendar days before it was to expire on November 2, 2001. Thus, we cannot affirm either on the trial court's determination that it could not act or on appellees' alternative theory that the statute of limitations had expired because the motions did not com e to the attention of the trial court until after the twelve years had lapsed.

Therefore, we reverse the trial court's order of dismissal and remand for consideration of the motions to revive the judgment. If appellees offer no other defense or cause why the judgment should not be revived, the trial court should grant appellant's motion to revive the judgment. Cf. Michael, 95 U.S. App. D.C. at 188, 221 F.2d at 61 (suggesting that a court may deny a properly filed motion to revive for cause shown, including release, payment or discharge of judgment or proper defenses).

So ...

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