                                        IN THE
                                TENTH COURT OF APPEALS

                                        No. 10-11-00378-CV

ANTHONY E. GILL,
                                                                        Appellant
    v.

CLINT McRAE,
                                                                        Appellee


                                  From the 12th District Court
                                     Walker County, Texas
                                     Trial Court No. 25,576


                                 MEMORANDUM OPINION

          Anthony E. Gill, a former prison inmate, sued Clint McRae, the Sheriff of Walker

County, for the Sheriff’s alleged failure to levy on the property of Boyd Distribution

Center1 against which Gill had a writ of execution. See TEX. CIV. PRAC. & REM. CODE

ANN. § 34.065 (West 2008). McRae filed a motion for summary judgment which the trial

court granted. Gill appeals.

          In his first issue, Gill’s complains that the trial court erred in granting summary

judgment for McRae because McRae allegedly sought summary judgment on the basis


1   The summary judgment evidence indicates this is a building, not an entity, and does not own property.
that Gill’s petition failed to state a cause of action. Citing Perry v. S.N., Gill contends a

claim for failure to state a cause of action cannot be properly resolved by summary

judgment proceedings. Perry v. S.N., 973 S.W.2d 301 (Tex. 1998). Perry does not stand

for this proposition. It does stand for the proposition, not pertinent to this proceeding,

that a trial court may grant a motion for summary judgment for the plaintiff's failure to

state a cause of action when special exceptions have been filed and the plaintiff has had

an opportunity to, but does not, amend the petition. Id. at 303.

       McRae did not move for summary judgment on the failure to state a cause of

action. In a failure-to-levy case, such as this, after a plaintiff has made out a prima facie

case, the burden shifts to the defendant to prove a defense or mitigation. Dupree v.

KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 607 (Tex. App.—Dallas 2007, no pet.).

The judgment creditor seeking relief under this section, in this case, Gill, has the burden

to prove:

       (1)   the judgment creditor has a valid judgment against the judgment
       debtor;

       (2)      the writ of execution was issued to the judgment creditor;

       (3)      the writ was delivered to the officer;

       (4)      the judgment creditor's judgment was unpaid and unsatisfied;

       (5)      the property to be levied on was subject to execution;

       (6)      the officer failed or refused to levy under the writ; and

       (7)      the amount of actual damages suffered.




Gill v. McRae                                                                          Page 2
TEX. CIV. PRAC. & REM. CODE ANN. § 34.065 (b) (West 2008). McRae claimed Gill did not

allege a prima facie case against him.

       Nevertheless, even if we construe McRae’s initial argument in his motion for

summary judgment as an argument that Gill failed to state a cause of action in his

petition, McRae also argued that he conclusively negated each of at least three essential

elements of Gill’s claim of failure-to-levy. Summary judgment on a defendant’s motion

is proper if the defendant conclusively negates at least one essential element of a

plaintiff’s cause of action. See IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason,

143 S.W.3d 794, 798 (Tex. 2004); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Gill

only pled one cause of action; that is, failure to levy. McRae moved for summary

judgment on multiple grounds; that Gill failed to allege a prima facie case and that

McRae conclusively negated each of at least three essential elements of Gill’s claim. The

trial court did not state the ground on which it based the summary judgment. “When

the trial court does not specify the basis for its summary judgment, the appealing party

must show it is error to base it on any ground asserted in the motion." Star-Telegram,

Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Gill does not complain that the trial court

erred in granting summary judgment on the basis that McRae negated at least one

essential element of Gill’s claim. Accordingly, Gill’s first issue is overruled.

       In his second issue, Gill contends that because he and McRae both filed motions

for summary judgment, we should look “independently at all summary judgment

evidence, pleadings, and questions presented to render proper judgment based solely

upon the same.” Gill fails to argue why the trial court should have granted his motion

Gill v. McRae                                                                        Page 3
or why the trial court should not have granted McRae’s motion. It is Gill’s burden to

point out error by the trial court and brief it sufficiently. See TEX. R. APP. P. 38.8. This

issue is improperly briefed and presents nothing for review. Id. Gill’s second issue is

overruled.

       The trial court’s order granting summary judgment is affirmed.

       Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b); 51.208

(West Supp. 2012); § 51.941(a) (West 2005). Under these circumstances, we suspend the

rule and order the Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2.

The write-off of the fees from the accounts receivable of the Court in no way eliminates

or reduces the fees owed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 11, 2012
[CV06]




Gill v. McRae                                                                          Page 4
