Marvin Wade v. Brent Button

Marvin Wade, et al. v. Brent Button, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-98-249-CV

     MARVIN WADE, ET AL.,

                                                                              Appellants

     v.

     BRENT BUTTON, ET AL.,

                                                                              Appellees

From the 66th District Court

Hill County, Texas

Trial Court # 35452

O P I N I O N

             On January 5, 1998, Marvin Wade filed suit complaining that Sheriff Brent Button wrongfully levied upon a 1982 Chevrolet pickup truck under a writ of execution issued after a final judgment was entered against Wade. He also complained that, unless granted injunctive relief, other exempt property would be wrongfully sold. Button filed a motion for summary judgment, to which no response was filed. The court granted summary judgment relief. Wade now appeals, asserting that the court erred when it granted the summary judgment.

FACTS

      In 1994, a judgment was entered against Wade and a writ of execution was issued, under which Button levied and sold a 1982 Chevrolet pickup truck. The judgment and writ of execution were facially valid. Because the sale of the truck did not satisfy the judgment, a second suit was filed and a second judgment against Wade was entered, “recognizing the validity of their judgment lien from the (original) Judgment . . . .” The judgment further ordered the sale of 17 additional properties in satisfaction of the original judgment. To date, there has been no attempt to sell the additional 17 properties. Wade filed suit challenging Button’s authority to sell his truck and requesting that Button be enjoined from selling the additional 17 properties. Button filed a motion urging six bases for granting summary judgment. The court granted the motion without specifying the basis for its ruling.

SUMMARY JUDGMENT STANDARD OF REVIEW

     The summary judgment movant bears the burden to prove that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Bomar v. Walls Regional Hosp., 983 S.W.2d 834, 837 (Tex. App.—Waco 1998, pet. filed); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex. App.—Waco 1997, writ denied). If the movant is the defendant, he must conclusively negate at least one of the elements of the non-movant's cause of action or conclusively establish every element of an affirmative defense. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 616 (Tex. App.—San Antonio 1998, no pet.). Even if the non-movant does not file a response and the motion for summary judgment is uncontroverted, the movant still retains the burden to prove that he is entitled to summary judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ). Once the movant establishes a right to summary judgment, the burden then shifts to the non-movant to present issues that would preclude a summary judgment. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 817 (Tex. App.—Amarillo 1995, writ denied).

      When determining whether a material fact issue exists, we must accept as true all evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49; Delta Air Lines, Inc., 949 S.W.2d at 425. We must also resolve all doubts and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 549; Delta Air Lines, Inc., 949 S.W.2d at 425. Summary judgment is not intended to deprive the litigants of their right to a full hearing on the merits of any real fact issue. Kim v. State Farm Mut. Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex. App.—Dallas 1998, no pet.). If the trial court's order affirming the movant's summary judgment does not specify the grounds relied upon for its ruling, we will affirm the judgment if any of the grounds within the motion for summary judgment are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Gardner v. Best Western Int'l, 929 S.W.2d 474, 479 (Tex. App.—Texarkana 1996, writ denied).

STATUTE OF LIMITATIONS

      Wade argues that Button’s actions created a constructive trust. Because there is no specific limitations period for constructive trust claims, he asserts that the four-year residual limitations period applies. See Tex. Civ. Prac. & Rem. Code § 16.051 (Vernon 1997). Thus, if he is correct, his suit was timely. Wade relies on Austin Lake Estates, Inc. v. Meyer to support his assertion that he has a constructive trust claim. 557 S.W.2d 380 (Tex. App.—Austin 1977, no writ). In Austin Lake Estates, the court considered whether a constructive trust was properly imposed on money received in the wrongful sale of property. The court found that it was. Wade urges that the holding in Austin Lake mandates that he has a constructive trust claim rather than a wrongful execution claim. We disagree.

      A constructive trust prevents a wrongdoer from escaping the consequences of selling another’s land and keeping the proceeds. Id. at 382. When one party wrongfully takes the property of another, a constructive trust follows the property or its proceeds. Id. (citing Hand v. Errington, 242 S.W. 722, 724 (Tex. Comm’n App. 1922)). On the other hand, conversion has been defined as "the unauthorized and unlawful exercise of dominion and control over property inconsistent with or to the exclusion of another's superior rights in that property." Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759, 763 (Tex. App.—Houston [14th Dist.] 1990, writ denied); see also Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992). For example, if someone exercises dominion and control over a car by selling it without having a right to do so, he converts the vehicle. Kollision King, Inc. v. Calderon, 968 S.W.2d 20, 23 (Tex. App.—Corpus Christi 1998, no writ) (citing L.L.M. v. Mayes, 733 S.W.2d 642, 646 (Tex. App.—San Antonio 1987, no writ)).

      Wade is complaining that his right to the truck was superior to Button’s because the truck was exempt from the writ of execution. He argues that Button improperly exercised control over his property. This is a claim of wrongful conversion which is controlled by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.003 (Vernon 1986 & Supp. 1999). Because the sale occurred in May of 1995 and suit was not filed until January of 1998, Wade’s claim is time-barred. Thus, summary judgment was proper on the grounds of limitations. We need not address the other grounds on which summary judgment could have been granted.

      We overrule Wade’s issue and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Affirmed

Opinion delivered and filed August 11, 1999

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