Jerry L. Crockett, Respondent, v. Thomas O. Polen, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Jerry L. Crockett, Respondent, v. Thomas O. Polen, Appellant. Case Number: SC88232 Handdown Date: 05/29/2007 Appeal From: Circuit Court of Platte County, Hon. Gary D. Witt Counsel for Appellant: Michael W. McCrary Counsel for Respondent: Kim G. Schwartzkopf Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. In September 1994, the circuit court entered a judgment against Thomas Polen for $3,600 plus interest and costs for failure to pay on a promissory note to Jerry Crockett. Over the subsequent four months, two garnishment orders issued to Polen's employer were returned unsatisfied due to prior wage attachments under a child support order. In February 2004, it was discovered that the child support attachments had expired, so another garnishment order was served to collect Polen's debt to Crockett. The court began receiving and recording payments in March 2004. In January 2005, Polen moved to quash the garnishment, arguing the 10-year statute of limitations on the original judgment had lapsed. The trial court overruled the motion, and the garnishment continued until the debt was paid off. Crockett filed a release and satisfaction of judgment in June 2005. Polen appeals, seeking restitution of the amounts paid after September 2004. AFFIRMED.

Court en banc holds: The 10-year statute of limitations in section 516.350.1, RSMo Supp. 2005, runs either from the date of the judgment or, if a payment has been made on the judgment, from the date of the last payment. The plain language of the statute contains no express requirement that the debtor pay voluntarily. Here, the circuit court received and recorded two payments effected through the garnishment of Polen's wages before September 2004, tolling the statute of limitations. Citation: Opinion Author: Ronnie L. White, Judge Opinion Vote: AFFIRMED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. I. In June 1994, Jerry Crockett filed a cause of action against Thomas Polen for failure to pay on a promissory note. On September 13, 1994, the circuit court entered a judgment against Polen for $3,600 plus interest and costs. Between October 1994 and February 1995, two garnishment orders issued to Polen's employer were returned unsatisfied due to prior wage attachments under a child support order. In February 2004, it was discovered that the child support attachments had expired, so another garnishment order was served to collect Polen's debt in this case. The court began receiving and recording payments March 29, 2004. In January 2005, Polen filed a motion to quash the garnishment on the basis that the 10-year statute of limitations on the original judgment lapsed on September 13, 2004. The trial court denied the motion, and the garnishment continued until the debt was fully paid. Crockett filed a release and satisfaction of judgment June 29, 2005. Polen appealed, seeking restitution of amounts paid after September 13, 2004. This Court has jurisdiction under article V, section 10, of the Missouri Constitution.

II. The trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.(FN1) Statutory interpretation is an issue of law that this Court reviews de novo.(FN2) Section 516.350.1, RSMo Supp. 2005, provides in pertinent part: Every judgment . . . shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof [...] or, in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made [...]. Polen argues that the garnishment checks deposited with the court beginning in March 2004 did not restart the 10- year statute of limitations because the payments were not voluntary. Polen cites Eubank v. Eubank,(FN3) where a creditor attempted to revive an expired statute of limitations by back-dating credits in satisfaction of the debt. Specifically, an ex-wife kept rent proceeds on joint property as a substitute for unpaid alimony. Four years after the statute of limitations expired, she recorded her ex-husband's share of the proceeds as alimony payments made prior to expiration. The court of appeals held that those fictional payments, entered after expiration and without the debtor's knowledge or consent, did not serve to revive the judgment. Polen also cites Mayes v. Mayes,(FN4) in which an ex-wife sought to enforce a Missouri support award through criminal contempt proceedings in California, where her husband then resided. She collected some payments under the California order but did not record them as satisfaction of the Missouri judgment until five years after the statute of limitations had lapsed. As such, the Court deemed those payments a separate obligation that did not revive the judgment. Polen emphasizes that, in both cases, the courts characterized the payments as involuntary – in Eubank because the debtor was unaware of them and in Mayes because they were a condition of parole – and not specifically "on such judgment, order or decree" as contemplated in the statute. This Court rejects Polen's analysis. The central holdings in Eubank and Mayes rely on the critical fact that the 10-year statute of limitations had already expired before any payment was recorded. Additional cases cited in Polen's reply brief

further explain that voluntary payment rendered after expiration of the statute of limitations demonstrates a debtor's acknowledgment of the outstanding debt and intent to renew the promise to pay, thereby taking the case out of the statute.(FN5) In contrast, here, the circuit court received and recorded payments prior to expiration of the original 10-year limitation. Moreover, the plain language of the statute contains no express requirement that the debtor pay voluntarily. Such an interpretation would encourage reticent debtors to neglect their obligations and simply wait for the statute of limitations to lapse. The court of appeals recognized this potential for abuse in Martin v. Martin(FN6) and ultimately held that a garnishment payment "posted" within the period effectively revives the judgment. This Court agrees. The payments effected through the garnishment of Polen's wages and recorded by the court clerk prior to September 13, 2004, tolled the statute of limitations. The judgment of the circuit court is affirmed. All concur. Footnotes: FN1. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. 1976). FN2. Blakely v. Blakely, 83 S.W.3d 537, 540, (Mo. 2002). FN3. 29 S.W.2d 212 (Mo. App. 1930). FN4. 116 S.W.2d 1 (Mo. 1938). FN5. See for example Caneer v. Kent, 119 S.W.2d 212 (Mo. 1938). (Payments made after the note was barred do not revive the note unless they are made at the direction of or with the knowledge and consent of the debtor.) See also Davis v. Burke, 188 S.W.2d 765 (Mo. App. 1945). (When payment was made, the note showed on its face that it was barred by the statute of limitations. Part payment does not take a debt out of the statute unless made under such circumstances as to warrant the inference that the debtor thereby recognized the debt and signified his willingness to pay it.)

FN6. 979 S.W.2d 948 (Mo. App. 1998). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.