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Arkin Distributing Co. v. Jones

April 13, 2010

ARKIN DISTRIBUTING COMPANY, PLAINTIFF-APPELLANT,
v.
DONNA JEAN JONES, DEFENDANT-APPELLANT.



Oakland Circuit Court LC No. 1991-409445-NZ.

Per curiam.

FOR PUBLICATION

Before: GLEICHER, P.J., and O'CONNELL and WILDER, JJ.

Plaintiff appeals by leave granted an order granting defendant's motion to quash execution of a default judgment against defendant. We reverse.

I.

Plaintiff operated as a wholesale distributor of children's toys until 1995. Defendant was employed by plaintiff as a bookkeeper from 1970 to 1991, during which she handled all of plaintiff's banking and cash. In 1991, plaintiff alleged that defendant embezzled in excess of $562,000 over a ten-year period. Plaintiff commenced a civil action against defendant and her husband, Gary Jones. Defendant failed to defend the action and a default judgment was entered on July 24, 1991 against defendant in the amount of $562,664.97, plus interest totaling $165,743.56. Following a bench trial for the remaining claims against Jones, on January 8, 1993, the trial court granted plaintiff constructive trusts in certain assets owned by defendant and Jones, such as bank accounts and real property.

In separate criminal proceedings, defendant pleaded nolo contendere to 24 counts of embezzlement by an agent or trustee over $100, MCL 750.174. Pursuant to resentencing ordered by this Court in People v Jones, unpublished memorandum opinion of the Court of Appeals, issued March 10, 1995 (Docket No. 165512), defendant was sentenced on July 17, 1995, to 4 to 10 years in prison with parole conditioned on restitution of $537,432.10. Defendant was apparently released from prison one and one-half years later. As a condition of her parole, defendant began making monthly payments of at least $200 in May 1998. According to defendant's pleadings, she was released from parole in January 2003, but the record shows that defendant made monthly payments of $230 to plaintiff until January 2008.

As a result of Jones's death on June 15, 2007, defendant received additional assets and plaintiff began collection proceedings pursuant to the 1991 default judgment. Defendant maintained that the 10-year statutory limit on the default judgment had expired and requested that the trial court quash the execution and return financial assets already seized. The trial court ruled in favor of defendant, reasoning that payments made by defendant under the restitution order in the criminal case did not revive defendant's obligation to make payments under the civil order.

II.

On appeal, plaintiff argues that defendant's monthly partial payments revived and extended the period of limitations for the default judgment. We agree. The quashing of an execution rests in the discretion of the trial court. See Schmidt v Bretzlaff, 208 Mich App 376, 378; 528 NW2d 760 (1995). An abuse of discretion occurs when a result falls outside the principled range of outcomes. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 625; 750 NW2d 228 (2008). The applicability of a statute of limitations is a question of law reviewed de novo. Joliet v Pitoniak, 475 Mich 30, 35; 715 NW2d 60 (2006).

Plaintiff acknowledges that the 1991 default judgment is subject to the ten-year period of limitations set forth in MCL 600.5809(3), which provides:

Except as provided in subsection (4), the period of limitations is 10 years for an action founded upon a judgment or decree rendered in a court of record of this state, or in a court of record of the United States or of another state of the United States, from the time of the rendition of the judgment or decree.... Within the applicable period of limitations prescribed by this subsection, an action may be brought upon the judgment or decree for a new judgment or decree. The new judgment or decree is subject to this subsection.

Nevertheless, "any payment on a debt, whether before or after the running of the period of limitations, acts to extend the limitations period." Wayne Co Social Services Director v Yates, 261 Mich App 152, 156; 681 NW2d 5 (2004). Plaintiff argues that the order for restitution and the default judgment constituted the same debt, so defendant's monthly restitution payments made as a condition of parole extended the limitations period for the default judgment. We need not reach the merits of this argument, however, because we conclude that payments made after defendant was discharged from parole constituted a recognition of the remaining civil obligation to plaintiff and an indication of an intention to pay same.

The parole board, within the Department of Corrections, possesses exclusive jurisdiction over parole matters. Hopkins v Parole Bd, 237 Mich App 629, 646; 604 NW2d 686 (1999); see also MCL 791.238(1) ("Each prisoner on parole shall remain in the legal custody and under the control of the department...."). Any ...


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