Wilbert Antonio Coleman v. Cigarroa Auto Service; Service Manager Mr. Cigarroa; Bexar County and/or the Bexar County Sheriff's Office and/or Any Other All Bexar County Sheriff Deputies and/or Bexar County Execution Officer and His Sureties--Appeal from County Court at Law No 2 of Bexar County

00-00080 Coleman v Cigaroa Auto Service.wpd No. 04-00-00080-CV
Pastor Wilbert Antonio COLEMAN,
Appellant
v.
CIGARROA AUTO SERVICE; Service Manager Mr. Cigarroa; Bexar County and/or

Any Other All Bexar County Sheriff Deputies and/or

Bexar County Execution Officer and His Sureties.

Appellees
From the County Court at Law Number 3, Bexar County, Texas
Trial Court No. 240904
Honorable Shay Gebhardt, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 18, 2000

AFFIRMED

Factual and Procedural Background

Pastor Wilbert Antonio Coleman filed suit against Cigarroa Auto Service in Small Claims Justice Court, alleging Cigarroa failed to repair his car properly. The court rendered a take-nothing judgment in favor of Cigarroa. Coleman appealed the judgment to the County Court at Law, where he secured a default judgement against Cigarroa for $5000. The judgment remained unpaid, and Coleman was issued a writ of execution.

Coleman thereafter filed a Motion for Failure to Levy or Sell and Improper Return of Writ against the County, and a hearing was set for January 11, 2000. The trial court, however, denied his motion and dismissed all claims against the County. Coleman appeals, claiming the trial court wrongfully dismissed his claims and erroneously declared him a vexatious litigant. We disagree and affirm the trial court's dismissal.

Wrongful Dismissal

Where a judgment creditor challenges the propriety of a sheriff's actions in executing a writ, the creditor must plead a prima facie case. See Kuo Kung Ko v. Pin Ya Chin, 934 S.W.2d 839, 841 (Tex. App. - Houston [14th Dist.] 1996, no writ); Hickey v. Couchman, 797 S.W.2d 103, 107-08 (Tex. App. - Corpus Christi 1990, writ denied). To plead a prima facie case, the judgment creditor must allege that: (1) an execution based on a valid judgment was issued and delivered to the sheriff, (2) the debtor's property subject to execution is located in the county where the sheriff had the writ, (3) failure of the sheriff to seize the non-exempt property, and (4) an unsatisfied judgment. See Kuo Kung Ko, 934 S.W.2d at 841.Once the judgment creditor has satisfied his burden, the burden then shifts to the sheriff to disprove an element of the creditor's case or prove one of several mitigating defenses. See id.

Coleman failed to plead a prima facie case. His pleading, in fact, contained no allegations at all. Thus, the burden never shifted to the County. Further, at the hearing he presented no proof. On appeal, Coleman has presented tax records, as well as his own affidavits, in support of his assertions. These documents, dated March 31, 2000, and May 18, 1999, respectively, however, were not before the trial court and, therefore, we cannot consider them. Accordingly, we overrule Coleman's first issue.

Vexatious Litigant

Coleman also claims the trial court violated his 1st and 14th Amendment Due Process Rights by declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. 11.051 (Vernon Supp. 2000). Coleman, however, has failed to preserve his point for appellate review. We, therefore, overrule his second issue, and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH