                                                                                         03/29/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs January 3, 2018

       JANIE MARIE MARCUM-BUSH v. KEVIN PATRICK QUINN

                  Appeal from the Circuit Court for Wilson County
                        No. 5343-DV Clara W. Byrd, Judge
                     ___________________________________

                           No. M2017-01732-COA-R3-CV
                       ___________________________________


As part of a divorce proceeding, the trial court awarded one party a monetary judgment
against the other. The judgment debtor’s obligation to pay the judgment did not arise
until the sale of certain real property or after two years from the date of the judgment.
Although the real property was sold, the judgment debtor made no payments on the
judgment. The judgment creditor later moved to extend the judgment. The motion was
filed within ten years of the date of the sale of the real property but more than ten years
from the entry of the judgment. The trial court granted the motion to extend, concluding
that the judgment creditor’s cause of action on the judgment did not accrue until the real
property was sold. Because the motion to extend the judgment was untimely, we reverse.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II and ARNOLD B. GOLDIN, JJ., joined.

Blake Lawrence, Lebanon, Tennessee, for the appellant, Janie Marie Marcum-Bush.

Erin Alexander White, Nashville, Tennessee, for the appellee, Kevin Patrick Quinn.


                                       OPINION

                                            I.

       In 2006, Kevin Quinn and Janie Marcum-Bush divorced. At some point prior to
the divorce, Mr. Quinn loaned money to Ms. Marcum-Bush. So in its final order entered
on April 18, 2006, the Circuit Court of Wilson County, Tennessee, awarded Mr. Quinn a
judgment against Ms. Marcum-Bush in the amount of $14,547.68. The final order
“allowed” Mr. Quinn to file a lien against certain real property, which was Ms. Marcum-
Bush’s separate property, to secure payment of the judgment. But Ms. Marcum-Bush
was not “required to make any payments on the judgment until the sale of the real
property or after two (2) years from the date of this Final Order.”

      On March 31, 2008, Ms. Marcum-Bush sold the real property. Although
Mr. Quinn believed that his divorce attorney had recorded a judgment lien, apparently he
had not. Consequently, Mr. Quinn received no proceeds from the sale of the property.
And Ms. Marcum-Bush otherwise made no payments on the judgment.

       On February 16, 2017, less than ten years after the sale of the property, but more
than ten years since entry of the final order, Mr. Quinn petitioned the court to enter an
order of civil contempt against Ms. Marcum-Bush. He also asked to reduce the
arrearages to a final judgment and for permission to file a lien against Ms. Marcum-
Bush’s residence.

       Ms. Marcum-Bush answered and filed a motion for judgment on the pleadings. In
both her answer and motion, she argued that the relief was barred by the ten-year statute
of limitations found in Tennessee Code Annotated § 28-3-110(a)(2) (2017). She also
stated that Mr. Quinn had not extended the judgment under Rule 69.04 of the Tennessee
Rules of Civil Procedure.

       The trial court denied Ms. Marcum-Bush’s motion for judgment on the pleadings,
but it instructed Mr. Quinn to amend his petition to include a motion to renew the
judgment. Ultimately, Mr. Quinn withdrew his contempt petition and filed a motion for
an order of scire facias reviving the judgment. Ms. Marcum-Bush opposed the motion
for revival, again based on timeliness, and asked that the trial court reconsider its denial
of her motion for judgment on the pleadings.

      The court “revived” its prior judgment, denied the motion to reconsider, and
allowed Mr. Quinn to file a lien against any real property then-owned by Ms. Marcum-
Bush. The court concluded that the statute of limitations on the judgment did not begin
to run until March 31, 2008, the date that Ms. Marcum-Bush sold the property.
Mr. Quinn filed his motion for revival on May 4, 2017. Thus, according to the court, the
motion for revival was timely under Tennessee Code Annotated § 28-3-110(a)(2).

                                            II.

       Although she raises two issues on appeal, both of Ms. Marcum-Bush’s issues
revolve around the timeliness of Mr. Quinn’s petition for contempt and motion for
revival. Ms. Marcum-Bush contends that neither were timely under Tennessee Code
Annotated § 28-3-110(a)(2) and Tennessee Rule of Civil Procedure 69.04. So
Ms. Marcum-Bush submits that she was entitled to judgment on the pleadings. Because
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Mr. Quinn withdrew his petition for contempt, we limit our review to the request for
revival of the judgment.
                                        A.

       A motion by a defendant for judgment on the pleadings “is in effect a motion to
dismiss for failure to state a claim upon which relief can be granted.” Timmins v.
Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009). In assessing the motion, the trial
court must accept as true “all well-pleaded facts [of the party opposing the motion] and
all reasonable inferences drawn therefrom.” McClenahan v. Cooley, 806 S.W.2d 767,
769 (Tenn. 1991). The court must accept as false “all allegations of the moving party
which are denied.” Trigg v. Middle Tenn. Elec. Membership Corp., 533 S.W.2d 730, 733
(Tenn. Ct. App. 1975). Conclusions of law in the pleadings are ignored. Id.

       A judgment on the pleadings is appropriate only where “there are no issues of
material fact and . . . only questions of law exist.” Rogers v. Atwork Corp., 863 F. Supp.
242, 244 (E.D. Pa. 1994) (discussing Federal Rule of Civil Procedure 12(c)). Judgment
should be granted where all the well-pleaded facts and the reasonable inferences
therefrom do not entitle the party to relief as a matter of law. Harman v. Univ. of Tenn.,
353 S.W.3d 734, 736 (Tenn. 2011). Thus, the grant or denial of a motion for judgment
on the pleadings presents a question of law, which we review de novo, with no
presumption of correctness. Mortg. Elec. Registration Sys., Inc. v. Ditto, 488 S.W.3d
265, 275 (Tenn. 2015).

       This appeal requires interpretation of a statute and rules of procedure.
Interpretation of statutes and rules of procedure also presents a question of law subject to
de novo review. Id. (statutes); Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013)
(Tennessee Rules of Civil Procedure).

                                                B.

       The common law presumed a judgment satisfied or released if execution was not
sought on the judgment within a year. Whitworth v. Thompson, 76 Tenn. 480, 483
(1881). The presumption grew stronger with the passage of time. Keith v. Metcalf, 32
Tenn. 74, 75-76 (1852). To overcome the presumption and seek execution on the
judgment, a judgment creditor had to resort to a scire facias to revive the judgment.1
Whitworth, 76 Tenn. at 483. A judicial writ, a scire facias “call[ed] upon the defendant to
show cause why the judgment[ ] should not be revived.” Hayes v. Cartwright, 74 Tenn.
139, 143 (1880); see also Scire Facias, BLACK’S LAW DICTIONARY (10th ed. 2014)
(defining “scire facias” as “[a] writ requiring the person against whom it is issued to
appear and show cause why some matter of record should not be enforced, annulled, or

       1
          The judgment creditor could also bring suit on the judgment. Shepard v. Lanier, 241 S.W.2d
587, 591 (Tenn. 1951); McGrew v. Reasons, 71 Tenn. 485, 489 (1879) (on petition to rehear).
                                                 3
vacated, or why a dormant judgment against that person should not be revived”).

       A scire facias was not considered a new action, rather it was a continuation of the
action in which the judgment was rendered. McIntosh v. Paul, 74 Tenn. 45, 47 (1880);
Craddock v. Calcutt, 285 S.W.2d 528, 533 (Tenn. Ct. App. 1955). So the court that
rendered the judgment for which revival was sought retained jurisdiction to issue the
scire facias. Craddock, 285 S.W.2d at 533-34. Still, like a new action, the party
opposing the writ could seek its dismissal on legal grounds. Hayes, 74 Tenn. at 143-44;
Lain v. Lain, 62 Tenn. 30, 32 (1873).

        Our legislature eventually did away with the common-law presumption of
satisfaction or release of a judgment upon which no execution was issued. Gregory v.
Chadwell, 43 Tenn. 390, 392 (1866); 1858 Code of Tenn., § 2987 (“It shall not be
necessary to issue a scire facias to revive judgments or decrees which have lain a year
and a day without the issuance of an execution, but execution may be sued out, in such
case, after the year and day, as if issued within that time.”). Instead it set a ten-year
limitation for executing on judgments. Whitworth, 76 Tenn. at 484; 1858 Code of Tenn.,
§§ 2769, 2776 (requiring the filing of “actions on judgments and decrees of courts of
record of this or any other State or Government, and all other cases not expressly
provided for, within ten years after the cause of action accrued”). To execute on an
unsatisfied judgment beyond the limitation period required revival within that ten-year
period. Whitworth, 76 Tenn. at 484. But the ten-year limitation period could be waived
by a failure to raise the statute of limitations as a defense. Rogers v. Hollingsworth, 32
S.W. 197, 198 (Tenn. 1895).

       The current version of the statute of limitations for actions on final2 judgments and
decrees provides that such actions “shall be commenced within ten (10) years after the
cause of action accrued.”3 Tenn. Code Ann. § 28-3-110(a)(2). In considering an earlier
enactment of the same statute, our supreme court, in Shepard v. Lanier, held that a cause
of action on a judgment or decree accrues “upon the entry of the judgment in the [trial]
court.” 241 S.W.2d 587, 590-91 (Tenn. 1951) (interpreting § 8601 of the 1932 Code of
Tennessee); see also Warren v. Haggard, 803 S.W.2d 703, 705 (Tenn. Ct. App. 1990)
(holding that statute of limitations began to run upon entry of final judgment of the trial
court). The court concluded that this was so even though the judgment had been
appealed and further action on the judgment was suspended in the trial court until the
ruling of the appellate court. Shepard, 241 S.W.2d at 591-92.

          2
          The word “final” is used in the sense of being appealable as of right. See Tenn. R. App. P. 3(a).
The statute of limitations found at Tennessee Code Annotated § 28-3-110 “is not applicable to
interlocutory orders.” Warren v. Haggard, 803 S.W.2d 703, 705 (Tenn. Ct. App. 1990).
          3
              There is no limitation period on judgments for child support. Tenn. Code Ann. § 36-5-103(g)
(2017).

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        As he did in the trial court, on appeal, Mr. Quinn argues that the cause of action on
the judgment against Ms. Marcum-Bush accrued at a later date than the date of entry of
the final judgment due to the conditions placed on payment of the judgment. For this
proposition, he relies on Allison v. Hagan, 211 S.W.3d 255 (Tenn. Ct. App. 2006).4 In
Allison, the trial court’s final order incorporated the terms of the parties’ marital
dissolution agreement. Id. at 257. The marital dissolution agreement provided that the
husband would pay the wife for her equity interest in the martial assets, but the majority
of that payment would not be due until the marital residence was sold. Id. Applying
general contract principles to the language of the marital dissolution agreement, we held
that wife’s cause of action did not accrue until the marital residence was sold, which took
place over twelve years after the entry of the final decree of divorce. Id. at 258-62. So
we concluded that the wife’s petition for contempt against the husband, filed
“approximately 12½ years after entry of the Final Decree of Divorce,” was not barred by
the statute of limitations applicable to enforcement of judgments. Id. at 258, 262.

        In Allison, we made no reference to our supreme court’s earlier decision in
Shepard. And we cannot square the holding of Allison with that of Shepard. As such, we
are constrained to follow Shepard. See Bloodworth v. Stuart, 428 S.W.2d 786, 789
(Tenn. 1968) (“The Court of Appeals has no authority to overrule or modify Supreme
Court’s opinions.”). We also note that, although payment of the judgment in this case
was conditioned on future events (sale of property or two years), parts of the judgment
could be enforced upon entry. The judgment provided that Mr. Quinn could “file for a
lien in the amount of [the judgment] against the Wife’s real property.” And even if that
language did not appear in the judgment, Mr. Quinn had the ability to record a judgment
lien by statute. See Tenn. Code Ann. § 25-5-101(b)(1) (2017). So we conclude that
Mr. Quinn’s cause of action accrued on entry of the judgment against Ms. Marcum-Bush
and not upon the subsequent sale of the real property.

      Having been filed more than ten years after the entry the judgment, Mr. Quinn’s
motion for revival was untimely. Thus, the motion should have been denied upon
Ms. Marcum-Bush’s response asserting the statute of limitations.

                                                      C.

      The Tennessee Rules of Civil Procedure provide additional support for our
conclusion that Mr. Quinn’s motion for revival was untimely. Specifically, Tennessee
Rule of Civil Procedure 69.04 provides that, “[w]ithin ten years from the entry of a
        4
           Mr. Quinn also relies on the advisory commission comment to Tennessee Rule of Civil
Procedure 58, which implies that a court retains authority to specify a delayed effective date for a
judgment. See Tenn. R. Civ. P. 58 cmt. (“Under this Rule, unless otherwise ordered by the court, the
effective date of a judgment is the date of its filing with the clerk after being signed by the judge . . . .”).
Here the trial court did not specify a different effective date for its judgment.
                                                       5
judgment, the creditor whose judgment remains unsatisfied may file a motion to extend
the judgment for another ten years.” Tenn. R. Civ. P. 69.04. Rule 69.04 appears to have
supplanted revival of a judgment by scire facias, a judicial writ calling for a person to
show cause why a dormant judgment against that person should not be revived. As the
advisory commission’s comment states, the 2016 “revision [to Rule 69.04] eliminate[d]
the prior procedure of issuance of a show cause order by the court.” Id. cmt. If so, the
time limit provided in the rule barred Mr. Quinn’s motion. But even if scire facias
remains a method for revival separate and apart from a motion for revival, the rule would
still work to limit the time in which a scire facias could be sought.

        To the extent possible, we must endeavor to interpret Tennessee Code Annotated
§ 28-3-110(a)(2) in harmony with Rule 69.04. See Pratcher v. Methodist Healthcare
Memphis Hosps., 407 S.W.3d 727, 736 (Tenn. 2013). We comply with this mandate by
concluding that the cause of action on a judgment accrues for purpose of the statute of
limitation on the date of entry of the judgment. To hold otherwise would create a conflict
between the statute and Rule 69.04. The statute would permit revival of a judgment more
than ten years after the judgment’s entry, and the rule would permit revival only by
motion filed within ten years of the judgment’s entry. Such a conflict must be resolved in
favor of Rule 69.04 and its limitation of the time a request for revival might be sought.
See Tenn. Code Ann. § 16-3-406 (2017) (“After the rules have become effective, all laws
in conflict with the rules shall be of no further force or effect.”); Pratcher, 407 S.W.3d at
736.

                                            III.

       Mr. Quinn’s claim accrued upon the entry of the judgment against Ms. Marcum-
Bush. His motion for an order of scire facias reviving the judgment was filed more than
ten years after entry of the judgment. Thus his motion was barred by Tennessee Code
Annotated § 28-3-110(a)(2). We reverse the decision of the trial court. We remand with
directions to enter an order granting Ms. Marcum-Bush judgment on the pleadings and
for any further proceedings as are necessary and consistent with this opinion.


                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE




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