## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00090

- CV

PHARUS FUNDING , LLC, AS ASSIGNEE OF LHR, INC. , Appellant
V. JERRY SOLLEY AND LOLA M. SOLLEY , Appellee s

On Appeal from the County Court at Law No. 1

Johnso n County, Texas Trial Court No. C200800653

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION In early 2009 , LH R , Inc. (LHR) , obtained a default judgment against Jerry Solley and Lola M. Solley

. In 2020, Pharus Funding, LL C (Pharus) , as assignee of LHR, sought to revive the now

- dormant judgment by scire fa cias

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 31.006. Nevertheless, when Pharus sought an order for the district clerk to issue a writ of sc ire facias , the Johnson County trial court 1 denied the request. On appeal, Pharus contends that the trial cou rt erred when it denied Pharus ’ s request for a writ of scire facias . Because we find that there is no final appealable order in this case , we dis m iss this appeal for want of ju risdiction

. A judgment becomes dorman t ten years after its rendition, unless a writ of execution has been issued before its dormancy. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 34.001(a). After a judgment becomes dormant, exe c ution may not be issued on it unless it is revived. Id

. A dormant judgment may be revive d either by scire facias or an action on the debt brought within two years from the date it became dormant. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 31.006

. When revival of a dormant judgment is sought, a “ s cire facias ” requires “ the person against whom it is issued to appear and show cause

. . . why a dormant judgment against that person should not be revi ved. ” Scire facias , B LACK ’ S L AW D ICTIONARY ( 10 th ed. 2014) . Scir e f acias may refer to both the writ and the whole proceeding. Int ’ l Fid

. Ins. Co. v. State , 71 S.W.3d 894, 897 n. 2 (Tex. App.

— Texarkana 2002 , no pet.). “ A scire facias proceeding for the revival of a judgment does not constitute a new suit but is merely a c ontinuatio n of the original suit in which

1 Originally appealed to the T en th Court of Appeal s, this case was transferred to this C o urt by the Texas Sup r eme Court pursuant to its docket equalization efforts. See T EX . G OV ’ T C ODE A NN . § 73.001. We are unaware of any conflict between precedent of the T en th Court of Appeals and that of this Court on any relevant issue. See T EX . R. A PP
. P . 41.3.3

the judgment was rendered. ” Carey v. Sheets , 218 S.W.2d 881, 882 (Tex. App.

— Waco 1949, no writ). The Texas Civil Practice and Remedies Code does not set forth the procedural steps to obtain the reviva l of a dor ma n t judgment under the scire facias procedure. However , the procedure is generally set out in the reported cases. First, the judgment creditor fil es an application to revive the dormant judgment , obtaining the issuance of a writ of scire facia s requirin g t he judgment debtors to appear and show cause why the judgment should not be revived , and obtaining service of the writ on the judgment debtors as required for all writs and
process. See Middleton v. State , 11 Tex. 255 (1854) (requir ing writ o f scire fa ci a s to be served and returned as required by law); Berly v. Sia s , 255 S.W.2d 505, 508 (Tex. 1953) (noting that , after writ of scire facias was issued , it was ser ved on judgment debtor, who filed no answer);
Frost Nat ’ l Bank v. White , N o . 14

- 1 8

- 00437

- CV , 2 01 9 WL 1602 180, at *1 (Tex. App.

— Houston [14 th Dist.] Apr

. 16, 2019, no pet.) (mem. op. ) (trial court ordered citation scire facias issued to judgment debtor) ; Didehbani v. Turner , No. 05

- 18

- 00002

- CV , 2018 WL 6716548 , at *1

– 2 (Tex. App.

— Dalla s Dec. 21, 20 1 8 , no pet .) (mem. op. ) ( trial court granted application for writ of scire facias, which was issued by court clerk); Carey , 218 S.W. 2d at 882 (writ s of scire facias issued and served on judgment debtors, who filed responses thereto); 2 see T EX
. R. C IV
. P

. 15

– 17

. After the judgment debtor has answere d, or after the time for filing an answer has expired, the creditor
may set a hearing on its application to revive the dormant judgment and obtain an order reviving

2 T h o se case s indicate that the writ of scire facias, which must be served on the judgment debtor by an appropriate authority and requires the judgment debtor to answer the request to revive the dormant judgm ent, is analogous to a citation and ser v ice of a citation

.4

the judgment

. See Berly , 255 S.W. 2d at 508 ( aft er no answer filed, court entered order reviving judgment); Frost Nat ’ l Bank , 2019 WL 1602180 , at *1 ( after judgment debtor failed to respond to writ of scire facias, trial court granted motion to revive judgment) ; Carey , 218 S.W. 2d at 882 (after jud gment deb tors responded to writ of scire facias by filing pleas of privilege, trial court held hearing on pleas)

. 3
In this case , on April 22, 2009, LHR obtained its default judgment against Solley in the amount of $18,229.57, plus $1,200.00 in a ttorney fee s , in c au se number C200800653 in the County Court at Law No. 1 of Johnson County (the Judgment)

. On J uly 1 6, 2020, Pharus , as assignee of LHR, filed its original application to revive judgment in the same cause, alleging that it is the current owne r and hol der of the j udgment against Solley in favor of LHR , and requesting that the trial court revive the judgment pursuant to S ection 31.006 of the Texas Civil Practice & Remedies Code

. Pharus obtained a hearing on its application f or the issuance of a wr it of

s cir e facias. Apparently , Pharus also pres ented the trial court with its propose d Amended Order

3 We are aware of the language in certain opinions of some of our sister courts of appeals that appear s to conflate the issuance of a writ of scire facias with the granting of an order reviving a do rmant judgment. See Didehbani , 2018 WL 671654 8, at * 4; Ste d man v. Paz

 ̧ 511 S.W.3d 635, 638 (Tex. App.

— Corpus Christi 2015, no pet.); Cadle C o. v. Rollins , No. 01

- 09

- 00165

- CV , 2010 WL 670561 , at *2 (Tex. App.

— Houston [1 st Dist.] Feb. 25, 2010, no pet.) (me m. op. ); Thomas v. Poonen , No. 05

- 00

- 01 2 33

- CV, 2001 WL 7556 3 8, at *2 (Tex. App.

— Dallas July 6, 2001, no pet.) (not designated for publication) (per curiam)

. However, the scire facias proceeding set for th above ensures that the judgment debtor has proper n otice of the judgment creditor’s applic a tion t o revive the dormant judgm e nt

. Through the requirement that the writ of scire facias be served in accordance with the Texas Rules of Civil Procedure governing the service of writs , the judgment debtor is ensur ed of receiving actual notice of the ap p licati on. See Hughes v. McClatc h y , 242 S.W.2d 799, 800 , 804 (Tex. App.

— Eastland 1951, writ ref’d. n.r.e.) (after service of citation was attempt ed in suit to revive dormant judgment it was determined that judgment debtor no longer resided in county and c o ncluded that judgment creditor had duty of continuing diligence to obtain service). In addition, this procedure ensures that the judgment debtor is afforded the opportunity to assert any defense s it may have to reviving the judgment , including payment. T his is particularly important i n a case such as this one in which the judgment creditor is purportedly an assignee of the original judgment creditor and may not be aware of any payments made by the judgm ent debtor to the original jud gment creditor. Confl a tin g the issuance of the writ o f scire facias with the order reviving the dormant judgment deprives the judgment debtor of the opportunity to assert any defenses and may deprive it of actual notice of t he judgment creditor’s attempt to revive the judgment

.5

Granting Application for Issuance of Writ of Scire Facias , which, if granted, would have ordered

“ the Clerk of the Court to issue a Writ of Scire Facias t o be serv ed on the Defendant ” (the Proposed Order). 4 The trial court denied Pharus ’ s request by writing “ Denied ” on the Proposed Order , dating it, and signing beneath its denial. The Proposed Order and the trial court ’ s denial , h owever, do not contain an y lan guag e indicati ng that the trial court also denied Pharus ’ s application to revive the judgment.

“ [T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment. ” Lehmann v . Har

- Con Corp

. , 39 S.W.3 d 191 , 19 5 (Tex. 20 01). “ A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record . . . . ” Id

. As we have previously sta ted, This Court has jurisdiction only over appeals from fin al judgments or certain s pecif ied interlocut ory orders. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014 (Vernon Supp. 2005); Onstad v. Wright , 54 S.W.3d 799, 803 (Tex. App.

— Texarkana 2001, pet. denied). Schoolcraft v. Dep ’ t of Family & Protective Serv s . , N o. 06

- 05

- 00076

- CV, 2005 WL 348 7849 , at

* 1 (Tex. App.

— Texarkana Dec. 22, 2005, no pet

. ) (mem. op.)

. Because the trial court ’ s order denied only the issuance of a writ of scire facias and did
not also dispose of Pharus ’ s request to revive the dormant judgm ent, we notified Pharus of this
po tential defect in our jurisdiction and afforded it the opportunity to show this Court how it had jurisdiction over the appeal , notwithstanding the noted defect. In its response, Pharus points out that some post

- judgment or ders , such as charging orders, may be app ealable “ if the order res olves property rights and imposes obligations on the

4 The Solleys have not entere d an appearance in this proceeding.6

judgment creditor or interested third parties. ” Spates v. Office of the AG , 485 S.W.3d 546, 551 (Tex. App.

— Houston [14th Dist.] 2016, no pet.) (citing J ack M. Sanders Fam ily Ltd . P ’ ship v. Roger T. Fridholm Revocable , Living Trust , 434 S.W.3d 236, 242 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) ). Pharus asserts that the trial court ’ s order resolves property rights and imposes obligation s on the judgmen t creditor beca use it den ies Pharus its statutory right to renew its judgment

. N one of the cases cited by Pharus in support of this assertion , however, stand for this proposition. 5 That being said, the order denying the issuance of a writ of scire facias d id not finall y d eny Pha rus any right it may have to renew the judgment

. That would occur only in the form of a final order effectively denying the application to revive a dormant judgment

. Rather, if Pharus believed the trial court erre d in denying its request for th e i ssuance of a writ of

5 See Frost Nat ’ l Bank , 2019 WL 1602180, at *1 ( appeal from denial of application to revive judgment , a citation, or writ of scire facias was issued and served on judgment creditor); McShane v . McShane , 556 S.W.3d 43 6 , 4 40

– 44 (Tex. App.

— Houston [1st Dist.] 2018, pet. denied) ( appeal from order granting application to revive dormant judgment in which issue was whether application was timely file d) ; Stedman , 511 S.W.3d at 63 6

– 37 (appeal from Rul e 91a order dismissing applic ation to revive dormant judgment) ; Keith M. Jensen, P.C. v. Briggs , No. 02

- 14

- 00096

- CV, 2015 WL 1407357 , at *1 (Tex. App.

— Fort Worth Mar. 26, 2015, no pet.) (mem. op.) (appe al from order denying application to revive dormant ju d g ment in which judgment debt or answered , unclear if answer was voluntary or in response to writ of scire facias ) ; Cadles of Grassy Meadow, II, LLC v. Herbert , No. 07

- 09

- 00190

- CV, 2010 WL 1705307 , at * 1 (Tex. App.

— Amarillo Apr

. 27, 2010, no pet.) (mem. op. ) (appeal from denial of app lication to revive dormant judgment, writ of scire facias was issued and served on judgment debtor) ; Ca dle Co. v. Rollins , No. 01

- 09

- 00165

- CV, 2010 WL 670561 , at *1 (Tex. A pp.

— Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op . ) ( appeal from order denying motion fo r scire facias to revive dormant judgment , judgment debtor answered, unclear if answer was voluntary or in response to writ of scire facias) ; Trad v. Colonial Co ins, Inc

. , No. 14

- 02

- 00172

- CV, 2003 WL 124680 , at *1

– 2 ( T ex. App.

— Houston [14th Dist.] Jan. 16 , 2003, no pet.) (mem. op.) (appeal from order denying petition for scire facias to revive dormant judgment, unclear whether a writ of scire facias was issued a nd served on judgment debtor) ; Poonen , 2001 WL 755638 , a t * 1

– 2 (appeal f rom order granting motio n for revival of judgment, as noted in f ootnote 2 above , the court’s discussion of the requirements to obtain a revival of a dormant judgment appea rs to conflate the issuance of a writ of scire facias wi th the order re v iving a d ormant judgment).7

scire facias , it cou ld re new its request to the trial court or, if Pharus believed that the trial court had no discretion to deny its request, it cou ld fi le a petition for a writ of mandamus

. 6
Pharus also asserts that the trial court ’ s statement a t the end of the hearing that it was

“ going to deny the request for the writ and not revive the judgment ” evidences the trial court ’ s intent to make a final ruling. However , a trial court ’ s oral statement tha t it is “ going to ” render judgment evidences t h e trial co urt ’ s intention to render judgment in the future, and not a present rendition of judgment. Fuentes v. Zaragoza , N o . 01

- 16

- 00251

- CV , 2017 WL 976079 , at *2 (Tex. App.

— Houston [1 st Dist.] March 14, 201 7, no pet.) ( mem. op.) (citing S & A Rest. Cor p. v. Leal , 892 S.W.2d 855, 857

– 58 (Tex. 1995) ); see also James v. Hubbard , 21 S.W.3d 558, 559 (Tex. App.

— San Antonio 2000, no pet.) ( “ We hold that a judge does not render judgment when he says, ‘ I am going to grant the divorce in this case. ’” ) ) . Consequ ently, the t r ial court ’ s oral pronouncement was conditional rather than final and failed to dispose of all pending claims and parties. Fuentes , 2017 WL 976079 , at *2. 7

6 In i ts response to this Court, Pharus requests that , if we determine that we do not have jurisdiction over this appeal , we then convert the appeal in to a petition for a writ of mandamus. T here are significant proced ural differ e nces , howeve r, between the requireme nts to prosecute an appeal and the requirements of an original proceeding

. Compare T EX
. R. A PP
. P. 21.1

– 39.8 with T EX
. R. A PP
. P. 52.1

– 52.11

. In addition, this Court has limited mandamus jurisdiction, which does not i n clude mandam us actions arising from Johnson County. See T EX
. G OV ’ T C ODE A NN
. §§ 22.201(g) (Supp.), 22. 2 21( b )(1) (Supp.)

.
7 Pharus also asserts that the presence of the trial co urt’s order denying the issuance of a writ of scire facias gives th is Court ju r isdiction, c iting Nat ional Judgment Rec overy C enter L.P. v. Vermillion , No. 05

- 17

- 014520

- CV, 2018 WL 1477604 , at *1 (Tex. App.

— Dallas Mar

. 2 7, 2018, no pet.) (mem. op.)

. H owever, in that case , the Dallas Court of Appeals merely dismissed the appeal becau s e the record did not contain an order deny ing the appellants application for a writ of scire facias

. Id . The c ourt did not express any opinion regarding whether it would have jurisdiction if the order had been included in the clerk’s reco rd.8

Because the trial court ’ s order does not dispose of all parties and pending c laims and does
not cle a rly e xpress the trial court ’ s intention that it be final and appealable , 8 we find that the order is an interlocutor y order over which we have no jurisdiction

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014 (Supp.)

. Accordingly, we d ismiss thi s appeal for w ant of jurisdiction. T EX
. R. A PP
. P. 42.3(a).

Josh R. Morriss, III Chief Justice Date Submitted : March 4, 2021 Date Decided: April 29 , 202 1

8 See Lehman n , 39 S.W.3d at 195 , 200.