Section 34.001 of the Texas Civil Practice and Remedies Code establishes the life span of a judgment in Texas. Cadle Co. v. Jenkins , 266 S.W.3d 4, 6 (Tex. App.—Dallas 2008, no pet.). Unless the judgment is renewed by the issuance of a writ of execution, that life span is ten years, after which the judgment becomes dormant and execution may not be issued on the judgment unless it is revived.
11 U.S.C. § 108(c) provides:, Cheruvathur argues that the Cade court's use of the term "statute of limitations" shows a misunderstanding of Texas law by the Texas court. He argues that Texas law is better illustrated by Cadle Co. v. Jenkins, 266 S.W.3d 4 (Tex. App. 2008), which "clearly noted a difference between a statute of limitations and the expiration of a judgment." But, the Cadle court did not address whether the pendency of a bankruptcy proceeding tolls the time limit for reviving a judgment.
See id.As additional support, Liptak cites Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932, 933 (1944), and Cadle v. Jenkins, 266 S.W.3d 4, 7 (Tex.App.-Dallas 2008, no pet.). In Stone, the defendant had her domicile in Texas at the time the obligation sued on, a debt evidenced by a promissory note, was entered into; she was absent when the final installment matured; and she remained absent until just before suit was filed against her. Stone, 176 S.W.2d at 934 (applying former statute, Article 5537).
Accordingly, AHC may not raise this argument on appeal. SeeTex.R.App. P. 33.1(a) (general rule regarding error preservation); Cadle Co. v. Jenkins, 266 S.W.3d 4, 7 n. 4 (Tex.App.-Dallas 2008, no pet.) (rejecting argument not preserved in trial court). B. Propriety of the dismissal of AHC's claims
The complaining party must, however, prove “the opportunity to replead was requested and denied to preserve the error for review.” Parker v. Barefield, 206 S.W.3d 119, 120 (Tex.2006) (per curiam); Cadle Co. v. Jenkins, 266 S.W.3d 4, 7 n. 5 (Tex.App.-Dallas 2008, no pet.). It is incumbent on counsel, when possible, to allow trial judges and opposing parties the opportunity to consider new arguments before raising those for the first time in a petition for writ of mandamus or on appeal.
Dormancy is an affirmative defense that must be raised in the pleadings. See Cadle v. Jenkins, 266 S.W.3d 4, 7 (Tex.App.-Dallas 2008, no pet.); TEX.R. CIV. P. 94. Second, this court has held, prior to its amendment, that sections 34.001 and 31.006 did not apply in a situation nearly identical to that presented here. See In re J.M.R., No. 04-03-00284-CV, 2004 WL 1292284, at *1-*2 (Tex.App.-San Antonio Jun. 23, 2004, no pet.).