Burman v. Snyder

2014 IL App (1st) 130772

• Court: Appellate Court of Illinois
• Decided: May 15, 2014
• Docket: 1-13-0772
• Status: Unpublished

Opinion

2014 IL App (1st) 130772 No. 1-13-0772 Opinion filed April 30, 2014 Third Division

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

CRAIG A. BURMAN, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 88 CH 5005 ) DANIEL SNYDER III, ) ) The Honorable Defendant-Appellee. ) Rodolfo Garcia, ) Judge, presiding. (Snyder Development Group, Inc., ) ) Defendant). ) ______________________________________________________________________________

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.

OPINION

¶1 If handled correctly, a judgment, like an ordinary houseplant, can last a long time, up to

27 years after the date the judgment was entered. But just as neglecting to periodically water a

houseplant will eventually cause it to wither and die, neglecting to periodically revive a

judgment will eventually cause it to become dormant and extinguish. That is what happened in

this case. Plaintiff, almost 7 years after obtaining a judgment, filed a petition to revive the 1-13-0772

judgment, but never effectuated service of the petition until 14 years later, which was after the

twentieth anniversary of the judgment.

¶2 The circuit court granted defendant's motion to dismiss the petition to revive because: (i)

in the absence of a second petition to revive, the judgment had become dormant and, the statute

of limitations having run, could no longer be revived; and, alternatively, (ii) plaintiff's having

served defendant with the petition after the expiration of the statute of limitations demonstrated

lack of diligence justifying dismissal under Illinois Supreme Court Rule 103 (eff. July 1, 2007).

Because we agree with the trial court's finding that the plaintiff's judgment became dormant, and

by operation of Illinois law, expired when it was not timely revived, we do not need to determine

whether the plaintiff acted diligently in serving the defendant.

¶3 BACKGROUND

¶4 Back in 1988, plaintiff, Craig A. Burman, filed a complaint against defendants, Daniel

W. Snyder III and the Snyder Development Group, Inc., for an accounting, declaratory

judgment, and other relief arising out of a breach of a purported oral agreement between the

parties regarding commissions. Defendants filed an appearance, but when their attorney failed to

appear at a hearing on September 6, 1991, the trial court entered a default summary judgment

against defendants in the amount of $91,284.25, plus costs.

¶5 Two years later, defendant Snyder appeared for a citation examination and the citation

was dismissed. Then, on June 9, 1998, Burman filed a motion to revive the September 6, 1991

judgment. On July 1, 1998, the summons was returned as not served. Burman waited over 13

years, until December 6, 2011, to file a summons, which was followed by an alias summons on

February 3, 2012, and a motion for appointment of a special process server on July 12, 2012.

The trial court on October 31, 2012, entered an order permitting Burman to serve process by mail

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at defendant's Florida address, which Snyder received on November 23, 2012. (The Snyder

Development Group, Inc., the corporate defendant, was never served, and the records of the

Illinois Secretary of State indicate the corporation was dissolved.) Snyder filed his appearance

on December 4, 2012, and moved to dismiss under Illinois Supreme Court Rule 103(b) (eff. July

1, 2007) and for sanctions under Illinois Supreme Court Rule 137 (eff. July 1, 2013). On

December 12, 2012, Burman moved to revive the judgment and to take limited discovery on

Snyder's motion to dismiss.

¶6 The trial court denied Burman leave to respond to Snyder's motion to dismiss, stating it

had considered the Rule 103(b) issues on its own motion, and entered an order finding that

Burman's 1998 petition to revive judgment, the only petition filed, could not, under section 12-

108(a) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/12-108(a) (West 2012)), serve

as a basis to revive the judgment after 2005, which occurred over seven years after the filing of

the 1998 petition. The court also held that even if the 1998 petition to revive judgment remained

viable, the 20-year statute of limitations expired on September 6, 2011, before defendant was

served in November 2012, which demonstrated a lack of diligence and warranted dismissal under

Illinois Supreme Court Rule 103(b). Further, the court denied Burman's motion for limited

discovery as moot and denied Snyder's request for sanctions under Supreme Court Rule 137,

finding that no improper purpose had been shown.

¶7 Burman timely appealed, asserting the trial court erred in finding that the statute of

limitations to revive the judgment expired on September 6, 2011, and in denying him leave to

respond to defendant's motion to dismiss. Burman asks this court to reinstate the petition to

revive the judgment or remand for further proceedings.

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¶8 ANALYSIS

¶9 Revival of the Judgment

¶ 10 Burman first contends he properly revived the 1991 judgment by filing a petition to

revive judgment in 1998, within seven years of its entry, as required by section 2-1602(a) of the

Illinois Code of Civil Procedure (735 ILCS 5/2-1602(a) (West 2012)), and that the trial court

erred in finding that the judgment was dormant. Snyder argues that although Burman properly

revived the judgment in 1998, to keep the petition viable under section 2-1602(a), Burman had to

file a second petition to revive in 2005, the seventh year after the filing of the 1998 petition.

Because this issue involves issues of statutory construction, a de novo standard of review applies.

Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 600 (2002).

¶ 11 Revival of a judgment is not an original suit but the continuation of a suit in which the

judgment was entered. Aetna Casualty & Surety Co. v. Brunsmann, 77 Ill. App. 2d 219, 222

(1966) (citing Smith v. Stevens, 133 Ill. 183, 191 (1890)). In Illinois, "no judgment shall be

enforced after the expiration of 7 years from the time the same is rendered, except upon revival

of the same by a proceeding provided by Section 2-1601." 735 ILCS 5/12-108(a) (West 2012).

Section 2-1601 of the Code abolished the common law revival method of scire facias in favor of

the revival procedure provided in that section. Under section 2-1602(a), "A judgment may be

revived by filing a petition to revive the judgment in the seventh year after its entry, or in the

seventh year after its last revival, or in the twentieth year after its entry, or at any other time

within 20 years after its entry if the judgment becomes dormant." 735 ILCS 5/2-1602(a) (West

2012).

¶ 12 Burman asserts that by filing the petition in 1998, within seven years of the date the

judgment was entered, he has complied with section 2-1602(a). Burman acknowledges he did

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not serve notice on defendant until more than 20 years after the judgment was entered but asserts

only the date of filing the petition and not the date of service is relevant in determining the

viability of a petition to revive. Thus, under Burman's interpretation, as long as a party files a

single timely petition for revival, a later petition need not be filed to make the judgment

enforceable in the future. For support, Burman relies on Smith v. Carlson, 8 Ill. 2d 74 (1956). In

Smith, a common law scire facias proceeding, the plaintiff filed his affidavit for revival of

judgment 5 days before the 20-year statutory period expired and served defendant with an alias

writ 14 days later. Defendants filed a motion to dismiss on the ground that an order of revival

could not be entered 20 years having transpired from the entry of judgment. The trial court

dismissed the case and the appellate court affirmed. The supreme court reversed, deciding that a

judgment could be revived where the affidavit for revival of judgment had been filed and the writ

had been issued before the 20-year limitation period expired, even though the alias writ’s return

date was after the limitation period. Smith, 8 Ill. 2d at 75.

¶ 13 Burman contends that having filed the petition within 7 years, the petition is viable, under

Smith, even if it was served on Snyder more than 20 years after the entry of the judgment. We

disagree. Under section 2-1602(a) of the Code, a judgment may be revived any time within 20

years of its entry. Once the 20 years elapse, the judgment is no longer viable. The entry of a

judgment of revivor does not toll the 20-year statute of limitations period. Brunsmann, 77 Ill.

App. 2d at 223. This court's holding in Brunsmann is illustrative. There, a judgment was

entered in plaintiff's favor on December 14, 1939. The plaintiff then obtained judgments of

revivor in June 1948 and February 1956. The judgment was never reversed, vacated or satisfied,

and on April 20, 1965, after 26 years had elapsed since entry of the judgment, the plaintiff filed a

complaint to revive the judgment. Id. at 220. The trial court granted plaintiff's motion for

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summary judgment and entered a third judgment of revivor. Defendant appealed, arguing that an

action to revive the judgment may not be commenced more than 20 years from the date of its

entry, and the intervening judgments of revivor did not serve to toll the running of the statute.

Id. This court agreed. In reversing, the appellate court noted that the statutory period of 20 years

after the date of the judgment "is clearly intended to limit the time for commencement of such

action to 20 years from the date of the original judgment, and the statute is not tolled by entry of

judgment of revivor." Id. at 223.

¶ 14 Burman's motion to revive judgment filed on June 9, 1998, did not toll the statute and

thus he had only until September 6, 2011, the twentieth anniversary of the date the judgment was

entered, to properly revive the judgment Once that date passed, the judgment was no longer

viable. Burman did file a second motion to revive the judgment, on December 12, 2012, but by

then 20 years had elapsed. Although Snyder was eventually served with a summons, on

November 23, 2012, that too was over 20 years after the date of the judgment.

¶ 15 Burman contends that the delay in serving Snyder should not preclude him from

enforcing the judgment because under Smith a judgment may be revived even though the

summons return date was after the limitations period. In Smith, the plaintiff filed his affidavit for

revival of judgment 5 days before the 20-year statutory period expired and served defendant with

an alias writ 14 days later. That is a far cry from the facts here. Burman did not serve the

petition on Snyder until more than 14 years after filing the petition to revive. The Smith court

did not hold that any delay in serving the judgment debtor was permissible.

¶ 16 Further, although Burman's delay in serving the petition on Snyder was one reason the

court dismissed the petition, the other reason was that the petition was no longer viable after

2005, absent a second petition to revive. Burman's interpretation of the statute—that filing a

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single petition to revive within seven years of the entry of judgment suffices—contradicts the

express language of section 2-1602(a).

¶ 17 "[I]n construing a statute, each provision and word should be given a reasonable

meaning, and the statute will not be presumed to contain surplusage ***." Jensen Disposal Co.

v. Town of Warren, 218 Ill. App. 3d 483, 490 (1991). Section 12-108(a) of the Code provides

that a judgment may not be enforced after seven years from the entry of the judgment, except on

revival. 735 ILCS 5/12-108(a) (West 2012). Section 2-1602(a) of the Code, which sets out the

revival procedure, provides that a petition to revive a judgment may be filed "in the seventh year

after its entry, or in the seventh year after its last revival, or in the twentieth year after its entry,

or at any other time within 20 years after its entry if the judgment becomes dormant." (Emphases

added.) 735 ILCS 5/2-1602(a) (West 2012). The words "last revival" indicate that a one-time

revival petition that would make a judgment viable indefinitely into the future was not

contemplated by the statute. That language, when read in conjunction with the remainder of the

section, indicates that a judgment becomes dormant seven years after its last revival. Robert G.

Markoff & Christopher J. McGeehan, Reviving Judgments in Illinois, 98 Ill. B.J. 40 (2010)

(describes statutes applicable to reviving judgments, including that in Illinois a judgment

becomes dormant seven years after its last revival or the entry of the original judgment).

¶ 18 Burman filed a petition to revive in 1998, within seven years of the date of the judgment.

He then failed to take any action until he filed a summons in December 2011. In 2005, seven

years after Burman filed his initial petition to revive, the judgment became dormant when he

failed to file another petition to revive. To keep the judgment viable, Burman was required to

file a second petition to revive in the seventh year after he filed his first petition to revive (in

2005) or before the twentieth anniversary of the date the judgment was entered—September 6,

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2011. He did neither. Thus, the trial court correctly found that the 1998 petition could not be the

basis for seeking to enforce the judgment, and in the absence of a second timely petition to

revive, the judgment was no longer enforceable.

¶ 19 Lack of Diligence

¶ 20 The trial court found that even if the 1998 petition to revive judgment remained viable,

Burman's failure to serve Snyder before the 20-year statute of limitations expired showed a lack

of diligence and warranted dismissal under Illinois Supreme Court Rule 103(b) (eff. July 1,

2007). Rule 103(b) provides as follows:

"If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant

prior to the expiration of the applicable statute of limitations, the action as to that

defendant may be dismissed without prejudice. If the failure to exercise reasonable

diligence to obtain service on a defendant occurs after the expiration of the applicable

statute of limitations, the dismissal shall be with prejudice as to that defendant only

and shall not bar any claim against any other party based on vicarious liability for that

dismissed defendant’s conduct. The dismissal may be made on the application of any

party or on the court’s own motion. In considering the exercise of reasonable

diligence, the court shall review the totality of the circumstances, including both lack

of reasonable diligence in any previous case voluntarily dismissed or dismissed for

want of prosecution, and the exercise of reasonable diligence in obtaining service in

any case refiled under section 13–217 of the Code of Civil Procedure." Ill. S. Ct. R.

103(b) (eff. July 1, 2007).

¶ 21 Section 2-1602(c) of the Code provides that service of notice of a revival petition must be

made in accordance with Illinois Supreme Court Rule 106 (eff. Aug 1, 1985). 735 ILCS 5/2-

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1602(c) (West 2012). Rule 106 provides that notice of the filing of a petition for a revival of a

judgment, as well as a petition under section 2-1401 of the Code (relief from judgments) or

section 12-183(g) of the Code (release of judgment) must be given by the same methods

provided in Rule 105 for the giving of notice of additional relief to parties in default. 735 ILCS

5/2-1401, 12-183(g) (West 2012). Rule 105(b) requires that notice be provided by one of three

methods: (1) personal service, (2) certified or registered mail, or (3) publication. Ill. S. Ct. R.

105(b) (eff. Jan. 1, 1989). The party seeking revival must give personal notice to prevent

surprise on the party owing the dormant judgment. Department of Public Aid ex rel. McGinnis v.

McGinnis, 268 Ill. App. 3d 123, 129 (1994).

¶ 22 In applying Rule 103(b) to a revival petition, the trial court noted that in People v. Prado,

2012 IL App (2d) 110767, a section 2-1401 petition was held to be dismissed under Rule 103(b)

if defendant failed to exercise reasonable diligence in serving the State. The trial court found

that because notice of filing of a section 2-1401 petition and a revival petition under section 2-

1602 are given by the same method, a revival petition may also be dismissed under Rule 103(b)

if a party fails to exercise reasonable diligence in serving the opposing party. Courts consider

many factors in either allowing or denying a Rule 103(b) motion, including, (i) the length of time

used to obtain service of process; (ii) the activities of plaintiff; (iii) plaintiff's knowledge of

defendant's location; (iv) the ease with which defendant's whereabouts could have been

ascertained; (v) actual knowledge on the part of defendant of pendency of matter as a result of

ineffective service; (vi) special circumstances that would affect plaintiff's efforts; and (vii) actual

service on defendant. Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207, 212-13 (2007). Rule

103(b) provides no specific time limit, and the court must assess the passage of time in relation

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to the other factors and circumstances on a case-by-case basis. Id. An abuse of discretion

standard applies to the trial court's Rule 103(b) decision.

¶ 23 Burman contends the trial court erred in finding that Rule 103(b) applies to a notice

served with a petition to revive a judgment, and if Rule 103(b) does apply, the trial court erred in

finding a lack of diligence and in denying his request to file a response to Snyder's motion to

dismiss. Because Burman failed to timely file his petition to revive the judgment, we need not

address this issue. But as a practical matter and to provide guidance on a procedure little

discussed in the case law, we agree with the trial court's reasoning. Our court rules require

notice of filings, which includes postjudgment proceedings. Accordingly, postjudgment creditors

proceed at their own risk should they ignore the diligence requirement of Supreme Court Rule

103(b).

¶ 24 We affirm the circuit court's dismissal of plaintiff's petition to revive the judgment.

¶ 25 Affirmed.