                                       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
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     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.




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