Advantage Auto v. Pell, Connie L.

NUMBER 13-99-521-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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ADVANTAGE AUTO

, Appellant,

v.

CONNIE PELL AND

MICHAEL KERRY KING

, Appellees.

___________________________________________________________________

On appeal from the 135th District Court of Victoria County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

Advantage Auto appeals the grant of summary judgment for Connie Pell and Michael King. We affirm.

Connie Pell obtained a judgment against Tim McMahan in justice court. The justice court issued a writ of execution, directing the sheriff to execute the writ. The sheriff levied upon one of Advantage Auto's vehicles and sold it to Michael King at a sheriff's sale. Thereafter Advantage Auto sued Pell for wrongful execution and conversion, and it sued King for conversion. Advantage Auto alleged that it, not McMahan, owned the vehicle.

Pell and King filed separate no-evidence motions for summary judgment asserting that there was no evidence of one or more of the essential elements of Advantage Auto's causes of action. Pell asserted that there was no evidence to show that she caused the sheriff to levy upon the vehicle.

Advantage Auto filed separate responses to each motion for summary judgment. The trial court granted summary judgment for Pell and King, signing separate orders.

By one point of error Advantage Auto argues that the trial court erred by granting summary judgments for Pell and King. Under a no-evidence motion the non-moving party must present evidence that raises a genuine fact issue on the challenged elements. Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex. App.--Amarillo 1999, pet. denied). A judgment creditor is liable for the manner in which a sheriff executes a writ of execution if he directs, participates in, or ratifies the wrongful execution. Executive Sportsman Ass'n, Inc. v. Southwest Bank & Trust Co., 436 S.W.2d 184, 185 (Tex. Civ. App.--Waco 1968, writ dism'd). See Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 760 (Tex. App.--Corpus Christi 1989, writ denied).

Conversion is any distinct act of dominion wrongfully exerted over another person's personal property in denial of, or inconsistent with, that other person's right in the property, either permanently or for indefinite time. Soto v. Sea-Road Int'l, Inc., 942 S.W.2d 67, 72 (Tex. App.--Corpus Christi 1997, writ denied).

Advantage Auto produced no evidence to raise a fact issue showing that Pell directed, participated in, ratified, or caused the wrongful execution on the vehicle. Further Advantage Auto produced no evidence to raise a fact issue showing that Pell or King converted the vehicle.

We AFFIRM the judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 21st day of December, 2000.